TMI Blog2023 (1) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be issued where service tax was not paid by reason of (a) fraud or (b) collusion (c) wilful mis-statement (d) suppression of facts or (e) violation of act or rules with an intent to evade payment of duty. It is a well settled legal principle that suppression does not mean mere omission but a positive act of suppressing information with an intent to evade payment of service tax. It is undisputed that in this case, the Department was fully aware of the activities of the appellant and had issued a show cause notice on 26.04.2011. Therefore, the Department cannot allege that it was not aware of the activities of the appellant and that the appellant had suppressed any information - the entire demand in this case is beyond the normal per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons who are dealing / selling the said SIM cards or recharge cards to the public. The impugned order cannot be sustained either on merits or on the limitation - Appeal allowed. - Service Tax Appeal No. 53553 of 2015 - Final Order No. 50049/2023 - Dated:- 19-1-2023 - MR DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Ms. Surabhi Sinha, Advocate for the Appellant. Shri Rajeev Kapoor, Authorized Representative for the Respondent. ORDER M/s J.K. Enterprises [ appellant ] filed this appeal to assail the order in original dated 22.07.2015 passed by the Principal Commissioner of Central Excise, Alwar whereby he confirmed the demand of Rs. 62,20,384/- as service tax under Section 73 and imposed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the SIM cards; (iii) The sale and purchase of SIM cards is trade and not a service and, therefore, it does not amount to providing business auxiliary service to M/s Vodafone as has been held in the following cases: (i) Virmati Software And Telecommunications Ltd. Vs. Commissioner of Central Excise Service Tax, Ahmedabad; [2021 (52) GSTL 622 (Tri.-Ahmd.)] (ii) Devangi Communication Other Vs. CST CE, Bangalore-ii and CCE Vs. Shri V.M. Nayak Benne [2018 (8) TMI 960;] (iii) M/s Deccan Associated Vs. CCE ST, Calicut [2018 (6) TMI 1153]; (iv) M/s Jalaram Agency Vs. CST-Mum-II [2017 (9) TMI 938]; (v) M/s ASS Manoharan Vs. CEX, Tiruvelveli Ors.[ 2017 (8) TMI 221]; (vi) CCE, Lucknow Vs. M/s Chotey Lal Rad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d invoking the extended period of limitation can be issued where service tax was not paid by reason of (a) fraud or (b) collusion (c) wilful mis-statement (d) suppression of facts or (e) violation of act or rules with an intent to evade payment of duty. It is a well settled legal principle that suppression does not mean mere omission but a positive act of suppressing information with an intent to evade payment of service tax. It is undisputed that in this case, the Department was fully aware of the activities of the appellant and had issued a show cause notice on 26.04.2011. Therefore, the Department cannot allege that it was not aware of the activities of the appellant and that the appellant had suppressed any information. The entire dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on the whole MRP value of SIM cards and recharge cards there could be no further service tax liability on the persons who are dealing/selling the said SIM cards or recharge cards to the public. The ratio adopted was also upheld by Hon ble Supreme Court in 2015 (37) STR J132 as well as by Hon ble Madras High Court in Bharti Televentures Ltd.: 2015 (40) STR 221 (Mad.). Coming to the contention of the learned DR that there is a specific contract between BSNL and the appellants, we find that similar is the issue with all the service providers like BSNL and other operators and the respective dealers as has been elaborately discussed in Tribunal s Delhi order CCE Vs. Moradabad Gas Services: 2013 (31) STR 308 (Tri.-Del.) 5.1 We also find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 65(19) of the Finance Act, 1994 and included services rendered by the Respondent? (ii) When the Hon ble Apex Court in the case of Idea Mobile Communication reported in 2011 (23) STR 433 (SC) has held that the value of SIM card forms part of activation charges as no activation is possible without valid functioning of SIM card and the value of taxable service is calculated on the gross total amount and the present transactions to BSNL and payment by BSNL were different, whether the Hon ble CESTAT was justified in dropping the demand? (iii) Whether the Hon ble CESTAT erred in treating it as double taxation when Services are distinct? Service Tax is paid on the full value of SIM card by BSNL under the Telecommunication Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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