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TMI Blog2023 (1) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 73 and imposed and an equal amount of penalty under Section 78 and further imposed a penalty under Section 77. 2. The appellant buys and sells SIM cards, recharge coupons etc. for mobile phones under a super distributor agreement with M/s Vodaphone Essar Digilink Ltd. A show cause notice dated 11.10.2013 covering the period April 2008 to March 2012 was issued to the appellant alleging that it was providing business auxiliary service to M/s Vodaphone Essar Digilink Ltd. as their franchisee for sale/distribution and marketing of the SIM cards and recharge coupons. Accordingly, service tax was demanded and penalties were proposed to be imposed. The show cause notice culminated into the issue of the impugned order. 3. Learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey Sham [2017 (9) TMI 509] (iv) Even if the demand is upheld, penalties cannot be imposed and the benefit of Section 80 of the Finance Act 1994 may be extended to set aside the penalties. 4. Learned authorized representative for the Revenue supports the impugned order. He submits that SIM cards are not goods but are a form of a service as held by the Supreme Court in Idea Mobile Communication Ltd. [2011 (23) STR 433 (SC)]. Therefore, the adjudicating authority has correctly held that the appellant was providing business auxiliary service to its principal M/s Vodafone. 5. We have gone through the records of the case and considered the submissions on both sides. 6. It is undisputed that the appellant was buying and selling of SIM cards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case is beyond the normal period of limitation. We agree with the learned counsel that the decision of Nizam Sugar Factory applies squarely to this case and a second show cause notice could not have been issued invoking extended period of limitation. On this ground alone the entire show cause notice needs to be set aside. 8. Coming to the merits of the case, according to the appellant it is trading in SIM cards and recharge coupons and, is not rendering any service to the principal. It is buying the SIM cards from it and selling them to others. Such arrangements are made by various telecom operators whereby they appoint distributors to buy and sell their SIM cards. The case of the Revenue is that since the Supreme Court has held in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants have received incentives and discounts in the course of their trading activity, they are not liable to pay service tax as per the ratio of the following decisions: Kerala Publicity Bureau Vs. CCE: 2008 (9) STR 101 (Tri.-Bang.) Euro RSCG Advertising Ltd. Vs. CCE: 2007 (7) STR 277 (Tri.-Bang.) P. Gautam & Co. Vs. CST: 2011 (24) STR 447 (Tri.-Ahmd.) Mccann Erickson (India) Pvt. Ltd. Vs.CST: 2008 (10) STR 365 (Tri.-Del.) CST vs. Jaybharat Automobiles Ltd.: 2016 (41) STR 311 (Tri.-Mum.) My Car Pvt. Ltd. vs. CCE: 2015 (40) STR 1018 (Tri.-Del.) CST vs. Sai Services Station Ltd.: 2014 (35) STR 625 (Tri.-Mum) 5.2 In view of the discussions above, appeals filed by the appellants survives and the appeal filed by the Revenue ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uxiliary Service". In the instant case Service Tax has been demanded from the respondent under the category of "Business Auxiliary Service" on the commission received from BSNL, which is different from "Telecom Service." (iv) Whether the Hon'ble CESTAT was justified in rejecting the plea of the Department when the Hon'ble CESTAT itself has given detailed reasons for the same vide paragraph 18 to 21 of the final order No. ST/A/684-687/2012 dated 06.11.2012 in case of M/s Martend Food & Dehydrates Pvt. Ltd. which was relied upon in this case holding that "The argument that tax should not be demanded in situation where somebody else has paid tax on the taxable value of a service is not an argument that can be accepted normally" and has itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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