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Showing contexts for: internal circular in Vodafone Cellular Ltd vs Coimbatore on 8 March, 2019Matching Fragments
a) Vodafone Cellular Ltd. v. CCE, Pune-III, 2014 (34) STR 890 (Tri.-Mumbai)
b) CST, Mumbai-I v. Vodafone India Ltd., 2015 (37) STR 286 (Tri.-Mumbai)
c) Paul Merchants Ltd. 2013 (29) S.T.R. 257 (Tri. -
Del.)
d) Vodafone Essar Gujarat Ltd. v. Commissioner of Service Tax, Ahmedabad 2015-TIOL-2100- CESTAT-Ahm.
e) Microsoft Corporation India Pvt. Ltd. v.
Commissioner of Service Tax, New Delhi 2014 (36) STR 766 (Tri.-Del.) ST/41798/2014 & ST/401312016 2.4 The impugned order has observed that the decision of the Tribunal in Vodafone Essar Cellular Ltd. is per incuriam for not considering the Notification No. 36/2007. The impugned order has also relied on Circular No. 90/1/2007-S.T. dated 03.01.2007. The Notification No. 36/2007 stipulated that the services provided to International Inbound roaming subscriber were not liable to service tax for the period from 01.07.1994 to 14.01.2007, and the Circular dt. 03.01.2007 clarified that the international inbound roaming services would be taxable under the erstwhile telephone services from 15.01.2007 onwards. Appellant submits that the Notification No. 36/2007 only stipulated non-taxability of the transaction for the period between 01.07.1994 to 14.01.2007. It did not make any positive stipulation on the taxability of the transaction. 2.5 In any case, the decision of the Tribunal in the appellant‟s own case was rendered on an in-depth analysis of the facts and the tenets of service tax levy. Under the framework of the Finance Act, 1994, it was held that the service recipient would be the FTO, and therefore the services would be deemed to have been exported. Under such circumstances, the Notification No. 36/2007 cannot be given primacy over a decision that determines levy on first principles. It is submitted that the Circular dt. 03.01.2007 has since been withdrawn vide Circular 96/7/2007-ST dt. 23.08.2007 and this ST/41798/2014 & ST/401312016 view has been expressed in Verizon Communication India Pvt. Ltd. vs. Assistant Commissioner, Service Tax, Delhi III, Division-XIV & Anr.; 2017-VIL-469-DEL-ST. 2.6 The appellant had filed rebate claims under Rule 5 of the Export of Services Rules, 2005 r/w Notification No. 11/2005-ST dt. 19.04.2005 for rebate of service tax paid on International Inbound Roaming Services exported to FTOs. Upon rejection of these rebate claims, the appellant filed a Revision Application before the Government of India. Order No. 01-05/2018 dt. 23.01.2018 („Order‟) was passed by the Principal Commissioner & Ex-Officio Additional Secretary to Govt. of India in adjudication of Revision Applications filed by M/s Vodafone West Limited and M/s Vodafone Cellular Limited against Orders-in-Appeal No. 199/2012(STC)/AK/COMMR(A)/ AHD dt. 03.09.2012 and CMB-CEX-000-APP-123 to CMB-CEX- 000-APP-126-13 dt. 27.03.2013 on the issue of International Inbound Roaming Services provided by the appellant to FTOs. The Order upheld the decisions in Vodafone Essar Cellular Limited vs. CCE, Pune, 2013 (31) S.T.R. 738 (Tri. - Mumbai) and in Vodafone Cellular Ltd. v. CCE, Pune-III, 2014 (34) STR 890 (Tri.-Mumbai) while also upholding the applicability of Circular No. 111/5/2009-S.T. dt. 24.02.2009 to the present circumstances. The order also upheld the reliance placed on the decision of the Tribunal in Paul Merchants Ltd. 2013 (29) ST/41798/2014 & ST/401312016 S.T.R. 257 (Tri. - Del.) as binding precedent for the issue under consideration. Therefore, appellant submits that International Inbound Roaming will not be liable to service tax. The appellant further prays that where the demand is itself not sustainable, the levy of interest and imposition of penalty is not tenable.
ST/41798/2014 & ST/401312016
3. The ld. AR Shri B. Balamurugan appeared and argued the matter on behalf of the department. His arguments are summarized as under:-
3.1 He adverted to the definitions contained in Section 65(109a) of the Finance Act, 1994 as well as the taxable service defined under section 65(105)(zzzx) of the Act. He also drew our attention to Notification No. 36/2007-ST dated 15.6.2007. It is argued by him that this is a notification issued under section 11C of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 whereby the service tax payable on roaming services provided by a telecom company to an international inbound roaming subscriber is not to be levied for a particular period from 1.7.1994 till 14.1.2007. This notification implies that the said services are leviable to service tax. Drawing attention to section 11C, he emphasized that only when services is subject to levy of service tax, there can be a notification issued under section 11C to exempt or take away the levy for particular period. Thus, the said notification 36/2007 would show that the services are taxable. 3.2 Again in circular No. 90/1/2007-ST dated 3.1.2007, the department has clarified the levy of service tax on services provided to international inbound roamers. In para 4 and 5 of the said circular, it has been clarified that during the period of roaming, the Indian telecom service provides telephone ST/41798/2014 & ST/401312016 services to an international inbound roamer and this service being consumed in India is not export of service.. Thus, from 15.1.2007, the said services are subject to levy of service tax and therefore the claim of the appellant that the activity amounts to export of service cannot sustain. 3.3 With regard to Circular No. 96/7/2007-ST dated 23.8.2007, which is the master circular, relied upon by the appellant, he submitted that the said circular is only for clarification on technical issues relating to taxation of service.
5.3 In drawing such conclusion, we are assisted by the Master Circular dated 23.8.2007 issued by the department. It may be correct that in Circular No. 90/1/2007-ST dated 3.1.2007 such services of providing international inbound roaming facility has been clarified by the Board not to be export of service. Moreover, in the subsequent master circular dated 23.8.2007, it is specifically clarified that the said master circular supersedes all earlier circulars. The relevant paragraph is extracted below:-
"42. Circular No. 90/1/2007, dated 3rd January, 2007 concerned provision of telephony services to subscribers of international telephone service providers who may be on a visit to India and are availing the inbound roaming services. The said Circular clarified that a telephone connection did not necessarily mean providing a telephone instrument or providing sim card. Even if a number was allocated temporarily to an inbound roamer and used internally it remained a service of a telephone connection. It was clarified that during the period of roaming, "the Indian Telecom service provides telephone service to an international inbound roamer. This service ST/41798/2014 & ST/401312016 to an inbound roamer is delivered and consumed in India and, therefore, is not an export of service."