Customs, Excise and Gold Tribunal - Bangalore
South East Corporation vs The Commissioner Of Customs, Central ... on 25 May, 2007
Equivalent citations: [2007]11STJ212(CESTAT-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from OIA No. 155/2006-ST dated 27.10.2006 by which the Commissioner (Appeals) has confirmed the ACCE's Order confirming Service Tax of Rs. 18,446/- and imposing penalty of Rs. 500/- under Section 77 and 76 of the Finance Act. The brief facts are that the appellants were purchasing BSNL post-paid/prepaid Cellular Sim Cards; that they had paid the full value of it and the tax had been paid by BSNL. Revenue has proceeded against the appellants to levy Service Tax alleging that their services come within the purview of Business Auxiliary Services. Tax has been raised for the period 07/2003 to 09/2004 by Show Cause Notice dated 15.02.2005. The appellants have taken two grounds: one is that they are only distributor appointed by BSNL and the second is that they are not clients and they were not carrying on any activity of service. They had only sold the post-paid and pre-paid Sim cards in their own right and the transaction involved profit and loss. It is their submission that the issue pertaining to levy of Sales Tax is pending before the Apex Court. The question of appellants carrying on any activity of Business Auxiliary Service does not arise, as they are purchasing and selling the post-paid/pre-paid Cellular Sim Cards and not promoting the sales as an agent on commission basis. Hence, the question of levy of Service Tax does not arise on the profits earned by them on the sale of the post-paid/pre-paid Sim cards. This plea has been rejected and the Commissioner (Appeals) has noted that the activity of selling/marketing the services of BSNL to come within the ambit of Business Auxiliary Service.
2. I have heard both sides in the matter. I am of the considered opinion that the appellants were not carrying on the activity of Business Auxiliary Service. They have purchased BSNL post-paid/pre-paid Cellular Sim Cards and sold the same in the market. They have only received certain amount of profit, which is ultimately a business practice when goods are sold in the market. The issue pertaining to levy of Sales Tax is already before the Apex court. There is no service carried out by the appellants but actually they have done the activity of purchase and sale which comes within the purview of 'sale of goods' and sales tax is attracted. The Commissioner (Appeals)'s finding that the appellant is doing the activity of marketing and distribution of products and it comes within the ambit of Business Auxiliary Service is not correct finding especially, in the light of the appellants having paid full value for the Sim Cards to the BSNL and sold the same on the profit margin. The learned Counsel points out to the correspondence with the BSNL, the appellants had on this issue, and the BSNL had clarified that they had already paid service Tax on the Sim cards sold to the appellants. This also clearly shows that the BSNL had already discharged their burden and there cannot be double taxation in the peculiar circumstances of the case. There is no merit in the impugned order and the same is set aside by allowing the appeal with consequential relief, if any.
(Pronounced and dictated in open Court)