TMI Blog2023 (8) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from the other two products. Further, this Tribunal in the case of M/S. DEVANGI COMMUNICATIONS, M/S. BOOPALAM ELECTRONICS, INDEPENDENT ASSOCIATES, M/S. SOMAYA MARKETING, M/S. VINAYAKA AGENCIES, M/S. MAGNUM VISION, M/S. BHOOPALAM MARKETING SERVICES PVT. LTD. VERSUS THE COMMISSIONER OF SERVICE TAX, THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-II AND CCE VERSUS SHRI V.M. NAYAK BENNE [ 2018 (8) TMI 960 - CESTAT BANGALORE] held that when the telecom operators are discharging service tax on the whole MRP value of SIM cards and recharge cards, then 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 impugned order is not sustainable in law - Appeal allowed. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Joy Kumar, Advocate for the Appellant Shri Narinder Singh, Authorised Representative for the Respondent ORDER The present appeal is directed against the impugned order dated 15.09.2011 passed by the Commissioner whereby he has confirmed the demand alongwith interest and penalties. 2. Briefly the facts of the case are that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. 5. Aggrieved by the said order, the appellant filed the present appeal. 6. Heard both the parties and perused the records. 7. Ld. Counsel for the appellant submitted that the impugned order passed by the Ld. Commissioner is not sustainable in law as the same has been passed without properly appreciating the facts and law. He further submitted that the appellant is not liable to pay service tax on the commission received by them. He further submits that BSNL has discharged service tax liability on full value equal to MRP (maximum retail price) which was inclusive of the appellant's discount/ /trade margin earned by the appellant on the sale of prepaid Mobile connections/recharge coupons. This aspect has not been verified by the department from BSNL while foisting the liability of service tax upon the appellant at any point of time as charging of tax twice on the upfront discount would tantamount to double taxation. He further submitted that they have produced certificate on record which is issued by BSNL wherein they have certified that maximum retail price of prepaid mobile connections/recharge coupons on which service tax has been discharged/paid by them are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (24) STR 447 (Tri.-Ahmd). ) iv. V. Mccann Erickson (India) Pvt. Ltd. vs. CST2008 (10) STR 365 (Tri.-Del). v. CST vs Jaybharat Automobiles Ltd.: 2016 (41) TR 311 (Tri.-Mum) vi. My Car Pvt. Ltd. vs. CCE: 2015 (40) STR 1018 (Tri.-Del) vii. CST vs. Sai Services Station Ltd.: 2014 (35) STR 625 (Tri.-Mum) 9. As far as limitation is concerned, the Ld. Counsel further submitted that the show cause notice was issued invoking extended period of limitation in terms of clause (a) of sub-section (1) of Section 73 as the noticee never declared to the department their practice of discharging service tax liability on total value, billed by them to their customers and further they never produced their details to prove as the whether such amount was later on realized and if realized whether service tax due paid by them. He further submitted that the subject proceedings are linked with the question as to whether or not the commission earned by agent selling pre-paid recharge coupons attract service tax and this activity of appellant does not fall within the ambit of service. Accordingly, they were having the bonafied belief that no service tax was payable. In support of this, he rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of CIT versus idea cellular Ltd-2010-TIOL-139-HC-DEL-IT. He further submitted that the Hon ble High Court have held that the transaction between the telecom company and the distributor under the similar arrangements constitute relationship of Principal and agent and not principal to Principal. He further submitted that the claim of the appellant that they were involved in the purchase and sale of SIM card is not in consonance with the finding of the Hon ble Supreme Court in the case of Idea mobile communication Limited versus CCE, Cochin -2011-TIOL-71-SC-ST wherein it has been categorically held that there is no element of sale involved in the transaction of SIM cards. Ld. DR also submitted that the judgements relied upon by the appellant in support of his submissions are not applicable in the facts and circumstances of the present case and are distinguishable. 12. After considering the submissions of both the parties and the perusal of material on record and the decision relied upon by both the sides, we find that this issue has been considered by various benches of the Tribunal and has consistently been held that the assessee is not liable to pay service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21144-21158 of 2018 dated 16.08.2018 held that when the telecom operators are discharging service tax on the whole MRP value of SIM cards and recharge cards, then 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 of decision in the case of GR Movers cited (supra) has been upheld by the Hon ble Madras High Court in the case of Bharti Televentures Ltd. -2015 (40) STR 221 (Mad.) and further the case of GR Movers cited (supra) was appealed against by the Revenue before the Hon ble Allahabad High Court and the Hon ble Allahabad High Court upheld the decision of the Tribunal as reported in 2015 (37) STR J132. 15. Further, coming to the contention of the Ld. DR that there is a specific contract between BSNL and the appellant, we find that similar is the issue with all the service providers like BSNL and other operators and respective dealers as has been elaborately discussed in Tribunal s Delhi Order CCE vs. Moradabad Gas Services 2013 (31) STR 308 (Tri.-Del.). 16. Further, the CESTAT Chennai Bench in the case of Kumar Electronics vs. Commissioner of Central Excise, Madurai 2019 (29) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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