TMI Blog2023 (12) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 - invocation of extended period of limitation - HELD THAT:- The Appellant submits that they are distributors of BSNL Prepaid/Post-paid SIM, Vouchers and are engaged for sale and distribution of BSNL products. The relation between them and BSNL is that of buyer and seller. There is no service provider/service receiver relationship. The Appellant does not provide any service and does not receive any service charges from BSNL. They only receive distributor s profit margin. BSNL supplies these cards etc. with fixed Maximum Retail Price (MRP) to them which is inclusive of Service Tax reduced by distributor s profit margin which is sold by them to end users at MRP. The difference is the distributor profit margin. BSNL pays service tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - HON BLE MR. R. MURALIDHAR MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri Kartik Kumrmy Ms. Ritika Kurmy , both Advocates for the Appellant Shri S. Mukhopadhyay , Authorized Representative for the Respondent ORDER PER K. ANPAZHAKAN : The present appeal has been file against the Order-in-Original No. 16/CCE/CE/RKL/2022-23 dated 23.12.2022 passed by Commissioner of CGST Central Excise, Rourkela. 2. The Appellant is a distributor/re-seller of BSNL s cellular products like SIM Cards, recharge vouchers, ITC Card etc. The Appellant purchases the said products from BSNL at wholesale prices and sells them at retail prices (MRP). The difference between the wholesale price and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by the Appellant neither falls in the Negative list under Section 66D nor falls under any of the items under Mega Exemption Notification No. 25/2012 ST dated 20-06-2012, as amended. Accordingly, the department alleged that the Appellant failed to pay service tax on this income. Extended period of limitation was invoked to demand service tax on the ground that the Appellant has not informed the department of receipt of the amount during subsequent period i.e. 2016-17 and also not obtained service tax registration and the department was kept in dark with malafide intention to evade tax. The Ld. Commissioner has confirmed the Service Tax as demanded in the Notice along with interest and equal amount of tax as penalty. Penalties were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period July 2003 to November 2004 and December 2004 to July 2005 while dealing with identical facts situation it was held by this Tribunal that there is no agency service or sales promotion service provided in such transactions, but it is a case of sale/purchase of item from BSNL on principle to principle basis which is pure trading activity and on the cellular products, the BSNL has already discharged Service Tax, hence, demanding service tax again from the trader would amount to double taxation. The said final order of this Tribunal has been accepted by the department and has attained finality. Accordingly, they contended that the impugned order is liable to be set aside. 6. The Appellant submits that similar views have been expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider/service receiver relationship. The Appellant does not provide any service and does not receive any service charges from BSNL. They only receive distributor s profit margin. BSNL supplies these cards etc. with fixed Maximum Retail Price (MRP) to them which is inclusive of Service Tax reduced by distributor s profit margin which is sold by them to end users at MRP. The difference is the distributor profit margin. BSNL pays service tax on the wholesale price including the distributor's profit margin. 11. We observe that the issue is no longer res integra as the Tribunal Kolkata has decided the issue in Appellant's own case Kedia Computer Services Vs. CCE reported in 2020-TIOL-951-CESTAT-KOL for the period July 2003 to Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is squarely covered by the ratio of the aforesaid decisions. Accordingly, we set aside the impugned Orders and allow the Appeals. 12. By relying on the decision cited above, we hold that the demand confirmed in the impugned order is not sustainable on merits. Since the demand itself is not sustainable the question of demanding interest or imposing penalty does not arise. 13. The Appellant submits that entire demand in the instant case is barred by normal period of limitation. The dispute in the instant case relates to the period from 2015-16 whereas the Show Cause Notice was issued on 30-12-2020 i.e. beyond the normal period of limitation under Section 73(1) of the Act. The normal period of limitation under Section 73(1) is 30 month ..... X X X X Extracts X X X X X X X X Extracts X X X X
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