TMI Blog2024 (4) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... resent for the Appellant: Sh. Joy Kumar, Advocate Present for the Respondent: Sh. Shivam Syal (Supdt.), AR ORDER The present appeal is directed against the impugned order dated 21.09.2011 passed by the Commissioner of Central Excise Service Tax, Ludhiana, whereby the learned Commissioner has confirmed the demand alongwith interest and penalty. 2. Briefly stated facts of the present case are that the appellant is an authorized distributor/franchises of M/s Bharat Sanchar Nigam Ltd (hereinafter referred to as the BSNL ). The appellant was duly registered with the Jurisdictional Central Excise Authorities and was issued Registration No. ACDPD5954HST001. The appellant deposited service tax amounting to Rs.2,41,674/- vide TR-6 Challan No. 15A, 16A, 17A, 19A all dated 30.11.2004 and thereafter filed a refund claim on 01.11.2005 before the Assistant Commissioner, Central Excise Division, Sangrur, which was duly sanctioned in favour of the appellant on the receipt of the letter bearing Ref. No. SDE/MOB/SRR/OM P KIDAR N/5 dated 24.12.2005 issued by the Divisional Engineer, Bharat Sanchar Nigam Ltd, Office of GMTD, Sangrur addressed to the Superintendent, Central Excise Range, Sangrur in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the present appeal. 3. Heard both the parties and perused the records. 4.1 The learned Counsel for the appellant submits that the impugned order is not sustainable in law and is liable to be set aside as the same has been passed without properly appreciating the facts and the law; and binding judicial precedents on the identical issue. 4.2 He further submits that BSNL has discharged the service tax liability on the full value of MSC which is inclusive of appellant's upfront 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. 4.3 He further submits that the Divisional Engineer, BSNL, Sangrur vide his letter dated 24.12.2005 addressed to the Superintendent, Central Excise Range, Sangrur has clarified that BSNL collects the service tax on the sale of Prepaid SIM Cards/Recharge Coupons of mobile connections from Om Parkash Kedar Nath, Distributor, Sangrur as per the rule applicable on gross amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE - 2015 (40) STR 1018 (Tri.-Del.) CST vs. Sai Services Station Ltd. - 2014 (35) STR 625 (Tri.-Mum) 4.6 As regards the limitation, the learned Counsel submits that invoking the extended period is not justified in the present case because the Department was aware of the activity of the appellant as the appellant deposited the service tax of Rs.2,41,674/- vide TR-6 Challan No. 15A, 16A, 17A 19A all dated 30.11.2004 and thereafter filed a refund claim on 01.11.2005 which was sanctioned in favour of the appellant, which clearly shows that the Department was aware of the activity carried on by the appellant. Further, the appellant surrendered the Registration Certificate vide their letter dated 25.05.2006. It shows that the appellant has not suppressed any material facts from the department with intention to evade service tax. In this regard, reliance is placed upon the following decisions: Collector of Central Excise Vs. Chemiphar Drugs Liniments - 1989 (40) ELT 276 (SC). M/s Padmini Products Vs. Collector of Central Excise - 1989 (43) ELT 195 (SC). M/s Pushpam Pharmaceuticals Company Vs. Collector of Central Excise, Bombay - 1995 (78) ELT 401 (SC). M/s Tamilnadu Housing Board Vs. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise, Lucknow [2013 (30) S.T.R. 634 (Tri.-Del.)] and Daya Shankar Kailash Chand v. Commissioner of Central Excise Service Tax, Lucknow [2013 (30) S.T.R. 428 (Tri.-Del.)]. The Hon ble High Court of Allahabad has upheld these two decisions. 7. We find that this contrived distinction attempted in the impugned order by the first appellate authority does not conform to logic or to any commercial distinction. On the contrary, the three decisions cited above are clear in laying down the principle that the user of the telephony services is the service recipient and tax liability on the gross value charged from such customer, whether first-time purchaser of SIM card or subsequent purchaser of other cards, is collected from the customer and deposited to Government account by the principal. An attempt has been made to catalogue the various activities that devolve on the appellants in relation to activation of SIM cards without appreciating the fact that the SIM cards are marked with an MRP on which tax is collected in full from the customer. Therefore, the commission paid to appellants is also included in the value on which tax has been collected from the customer. The cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, though it pertains to DTH operators, stands on the same footing and the logic, in our opinion, should be applied to these cases as well. It is true that the appellant is providing services to the DTH operators and is getting commission for such services. If the appellant had paid service tax on such commission, the main DTH operator could have availed Cenvat credit of the same thereby proportionately reducing the amount paid in cash by the DTH operator. Therefore the entire exercise is also revenue-neutral. In view of the above, we find that the issue is no longer res integra. On the SIM cards, recharge coupons etc., where the service tax has been paid on the M.R.P. by the main operator the commission agent/distributor need not pay service tax on the commission received by him because commission also forms part of the M.R.P. on which service tax has already been discharged. 17 . Further, we find that the decisions relied upon by the Ld. DR are not applicable in the facts and circumstances of the present case as the issue involved in those cases were not under the category of Business Auxiliary Service whereas the decisions relied upon by the appellant is squarely applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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