TMI Blog2008 (12) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that Sim Card would be separate object of sale. Notification No. 13/03 (supra) extended the exemption benefit to sale of goods. Hence, the Commissioner (Appeals) has rightly set aside the demand of tax for the period from 1.7.03 to 30.6.04 - ST/213/2007 - 61/2009-ST - Dated:- 31-12-2008 - Shri M. Veeraiyan, Member (Technical), Shri P.K. Das, Member (Judicial) Shri S.L. Kumar, DR for Appellants. Shri Sudhir Malhotra, Adv. for Respondent. Per P.K. Das : The Revenue filed this appeal against the order-in-appeal No. 13/CE/Appl/Jal/2007 dated 23.1.07 passed by the Commissioner (Appeals), Jalandhar. 2. Relevant facts of the case; in brief, are that the respondents sold the sim cards as per direction/instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to activation device to cellular service being provided by Spice Communication Ltd. He further, submits that Commissioner (Appeals) erroneously proceeded on the basis that sale of sim cards is sale of goods. He relied upon the decision of Supreme Court in Bharat Sanchar Nigam Ltd. vs. UOI [2006 (2) STR 161 (SC)]. It is the contention of the learned DR that sim card cannot be used as activation device and therefore it is not sale of goods and not within the purview of exemption notification. 4. Learned advocate on behalf of the respondents reiterates the finding of the Commissioner (Appeals). He submits that there is no dispute of sale of sim cards. He further submits that they were purchasing sim cards from M/s. Spice Communicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay service tax under the category of Business Auxiliary service." 6. The Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. (Supra) at page 80 observed that what a Sim Card represents is a question of fact. It is also observed that if the Sim Card is not sold by the assessee to the subscribers but is merely part of services rendered by the service providers, then a Sim Card cannot be charged separately to sales tax. In the present case, we find that the adjudicating authority had not disputed that Spice Communication Pvt. Ltd. paid the service tax on the activation and there is no dispute about the sale of Sim cards. It appears that Sim Card would be separate object of sale. Notification No. 13/03 (supra) extended the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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