M/s. Bharat Sanchar Nigam Ltd. Versus Commissioner of GST & Central Excise Chennai
Service Tax
2018 (11) TMI 1222 – CESTAT CHENNAI – 2019 (21) G. S. T. L. 42 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 6-9-2018
ST/Misc. /40889/2013 and ST/19/2012 – Final Order No. 42381/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. G. Vardhini Karthik, Advocate for the Appellant
Shri S. Govindarajan, AC (AR) for the Respondent
ORDER
Per Bench
The facts of the case are that the appellants are engaged in providing Telecommunication Service. Pursuant to audit, it emerged that the appellants were providing Interconnectivity Usage Charges (IUC) service to various telecommunication service providers viz. Airtel, Vodafone, Reliance etc. operating in India. It further emerged that the appellants were receiving and providing IUC services from Sri Lanka Telecom, a service provider situated outside India. That in res
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ory of service provided or received by the appellant and which become liable to discharge service tax liability under section 65(105) of the Finance Act.
2.2 Vide the Finance Bill, 2007, new definition “Telecommunication Service” was incorporated under section 65(104) of the Act with effect from 1.6.2007 whereby IUC was specifically incorporated in the definition of “Telecommunication Service” to make it a taxable service. However, the Board had issued a Circular No. F.No. 137/21/2011 dated 19.12.2011, where it was clarified that there cannot be any taxability in respect of International Private Leased Circuits charges provided by a foreign telecom service provider since such provider cannot constitute a telegraph authority under Indian law and they remain outside the taxability clause of the telecommunication service. She submits that the very same clarification would be applicable even in respect of IUC charges.
2.3 Ld. counsel also draws our attention to yet another circular F.No.
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is well settled that lack of such clarity in the show cause notice and omission to indicate the specific category of service under which the tax is proposed to be demanded will vitiate the proceedings ab initio.
5.1 Be that as it may, we find that the circulars dated 15.7.2011 and 19.12.2011 are very much applicable pari materia to IUC charges paid by the appellant to Sri Lanka Telecom. It is also pertinent to note that Board's circular dated 12.3.2007 cited by the ld. AR was in the nature of an advisory to convey the amended definition of telecommunication service as proposed in the Finance Bill, 2007. Even otherwise, the subsequent circulars dated 15.7.2011 and 19.12.2011 will surely override the said earlier circular. In the event, we find in favour of the appellant. The impugned order cannot be sustained and requires to be set aside, which we hereby do. The appeal is allowed with consequential relief, if any, as per law.
6. The miscellaneous application filed by the appellant for
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