9911796707
TMI Blog2008 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER 1. This appeal is filed with a delay of 72 days. The appellant submits in his affidavit that he could not file the appeal in time as he was suffering from jaundice and typhoid for a period of above 18 weeks immediately following the receipt of the impugned order. He had also undergone brain surgery in September 2005. Certificate from a retired Assistant Surgeon, Government Hospital, Mayi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be service tax payable by the appellant and appropriate interest for having rendered business auxiliary service without following the statutory formalities. The impugned order also imposed penalty under sections 76,77 and 78 of the Finance Act, 1994 (the Act). Under Section 78 penalty equal to the tax found to have been evaded is imposed. The appellant has filed an application for waiver of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission and tax involving the sale of SIM card of face value Rs. 300 as follows :- Face value of card Service Tax@ 10.2% Card value as sold to customer Commission to franchisee @5% Amount received from franchisee 300 (285 + 15) 30.06(29.07+1.53) [rounded of to31] 331 (300+31) 15 316 (285+31) 6. The appeal has challenged the demand on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Business Auxiliary Service. 7. Ld. Counsel for the appellant relies on the following decisions of the Tribunal in support of his case that the appellant did not engage in rendering Business Auxiliary Service. (i) South East Corpn. v. CC,CE&ST [F. No. 610 (Bang.) of 2007, dated 25-5-2007]; (ii) R.B. Agencies v. CCE [2008] 12 STT 184 (CESTAT-Bang.). 8. Ld. JCDR reiterates the findings contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of marketing and distribution of products and it comes within the ambit of Business Auxiliary Service is not correct finding especially, in the light of the appellants having paid full value for the SIM Cards to the BSNL and sold the same on the profit margin." The ratio of R.B. Agencies' case (supra) was also to the same effect. Following the ratio of the above decisions I allow the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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