TMI Blog2008 (7) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kang, Vice President and Shri Rakesh Kumar, Member (Technical) Final Order Nos. ST/124-125/2008 dated. 1.7.2008 certified on 16.7.2008 in Appeal Nos. ST/73-74/2004 Shri K. Srikant, Advocate, for the appellant. Shri A. Pandey, Jt. CDR, for the respondent. [Order per S.S. Kang, Vice President] - The appeals are being heard in view of the remand order passed by the Hon'ble High Court at Bombay. The Hon'ble High Court held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is no dispute in this regard. The contention is that this issue is now settled by the Tribunal in the case of M/s RPG Cellular Services Ltd. Vs. CCE reported in 2008-TIOL-642-CESTAT-MAD. 4. The contention of the Revenue is that the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. (supra) held that what a SIM card represents is ultimately a question of fact. The Hon'ble Supreme Court laid down the principles that if the SIM card is not sold by the assessee to the subscribers but is merely part of the service rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was covered by the cited decisions. On the other hand, learned SDR was of the view that, on the facts of this case, the question whether SIM card was part of taxable service should be remanded to the original authority for fresh decision in the light of the apex court's judgment in BSNL's case. In this connection, learned SDR pointed out this Bench had remanded a similar matter to the original authority in the case of Bharati Mobinet Ltd. Vs. Commissioner of Central Excise, Chennai [2007 (8) STR 256 (Tri.- Chennai)]. After examining the records and considering the submissions, we note that the principle which flows from the judgment of the apex court in BSNL's case is that service tax is leviable on services only and not on 'goods' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the apex court in BSNL's case is squarely applicable and, therefore, service tax cannot be levied on the value of the SIM cards sold by the appellants during the period of dispute. Such tax was leviable only on the activation charges because it was by the activation of SIM cards that the taxable service of telephone connection was rendered to the subscribers. It is not in dispute that service tax correctly paid on the activation charges. In the result, the impugned orders are set aside and these appeals are allowed." 6. In the present case, the facts which are not in dispute that the SIM cards are imported on payment of Custom duty and sales tax is being paid in respect of the sale of SIM cards, therefore, the ratio of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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