TMI Blog2023 (3) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ] , the Tribunal had set aside the demand observing that the assessee therein, who is an agent of M/s. BSNL, being engaged only in the purchase and sale of SIM cards and recharge coupons, the demand could not sustain, as M/s. BSNL had already paid the Service Tax on the SIM cards and recharge coupons. The said decision, however, would not be applicable to the case of the appellant on merits since the appellant herein is not only engaged in the purchase and sale of SIM cards, but also doing the activity of procurement of clients, promotion of sales, evaluation of prospective customers and other customer care services. The facts, however, reveal, that the appellant was under the bona fide belief that they were not liable to pay the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, collection of cash/cheques of mobile bills, evaluation of prospective customers and other customer care services for M/s. Aircel Ltd. in their capacity as an authorized agent, for which they received commission from M/s. Aircel Ltd. It appeared to the Department that the activity of the appellant falls under the category of Business Auxiliary Service in terms of Section 65(105)(zzb) of the Finance Act, 1994. 2. On verification of records, it was noticed that the appellant, though registered with the Department under the category of Business Auxiliary Service, had failed to pay the Service Tax and also file their returns. As per the records, they were liable to pay a sum of Rs.9,25,211/- towards the Service Tax for the period from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Aircel Ltd. He would submit that the commission paid to the appellant is out of the total amount received by the telecommunication service provider, which has been subjected to Service Tax by the telecommunication service provider viz. M/s. Aircel Ltd. That therefore, the demand of Service Tax on the commission paid to the appellant, which is part of the amount on which the telecommunication service provider has already discharged Service Tax, would amount to double taxation. The Learned Counsel for the appellant submitted that the appellant has not raised any bill for any such activities and the appellant received the commission out of the amount received for the post-paid connection for which the Service Tax was already discharged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the demand confirmed under Business Auxiliary Service is that the telecommunication service provider had already discharged the Service Tax liability on the commission, which is part of the charges collected for the post-paid connections. Be that as it may, we hold that the appellant is liable to pay Service Tax for the services rendered by them and therefore, we do not find any merit in the arguments put forward by the appellant challenging their liability to pay Service Tax. 8. The Learned Counsel for the appellant has also put forward arguments to set aside the penalty of Rs.5,000/- imposed under Section 77 of the Finance Act, 1994 and the equal penalty imposed under Section 78 of the Act ibid. It is seen that during the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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