Commissioner of CGST And Central Excise Versus M/s Rama Sales And Services
Service Tax
2018 (3) TMI 556 – ALLAHABAD HIGH COURT – 2018 (12) G. S. T. L. 286 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 9-3-2018
Central Excise Appeal No. 28 of 2018
Service Tax
Hon'ble Bharati Sapru And Hon'ble Harsh Kumar, JJ.
For the Appellant : Piyush Agrawal
ORDER
Heard Sri Piyush Agrawal learned counsel for the appellant and Sri Subham Agrawal assisted by Ms.Sanyukta Singh learned counsel for the respondent assessee.
This is department's appeal under section 35-G of the Central Excise Act,1944 against the judgment and order dated 3.7.2017 passed by the Custom, Excise and Service Tax Appellate Tribunal, Allahabad Bench, Allahabad. The questions of law sought to be answered are as under:
“(a) Whether the Hon'ble CESTAT has erred in not confirming the demand of service tax along with interest and imposition of penalties for the period in question when the “Bus
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
;ble CESTAT erred in treating it as double taxation when services are distinct? Service tax is paid on full value of SIM card by BSNL under the “Telecommunication Service” and not under “Business Auxiliary Service”. In the instant case, service tax has been demanded from the respondent under the category of “Business Auxiliary Service” on the communication received from BSNL, which is entirely different from “Telecommunication Service”?
(e) Whether the Hon'ble CESTAT has erred in not taking into account of its own case passed vide final order no.ST/A/684-687/2012CU(DB) dated 6.11.2012 in respect of M/s. Martand Food & Dehydrates Pvt. Ltd. Unnao, wherein at para 18 it was observed that “BSNL is paying service tax for value of telecommunication service being provided by them to the customer. Revenue is demanding tax on the service provided by distributor to BSNL which is in the nature of marketing of the services of BSNL to its customers and tax is demanded under the head of “Busin
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ready discharged the burden of Service Tax on the gross amount of SIM cards and demand of service tax on the same amount from the appellants will only lead to double taxation which is not permissible under the law. Hence the demand of service tax as ordered vide impugned order in original is not sustainable. Further when the demand is not sustainable, penalties imposed are also not maintainable.
Having heard learned counsel for the parties and having perused the material on record, we are of the view that in view of the law settled by the Hon'ble Apex Court in the case of Martend Food & Dehydrates Pvt. Ltd. decided on 6.11.2012, it has been held that the activities of purchase and sale of SIM cards belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards does not amount to providing business auxiliary service. Therefore the questions are answered against the department and in favour of the assessee.
This appeal is dismissed at the stage of ad
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =