2007 (3) TMI 66 - AT - Service Tax

SIM cards excluded from service tax calculation; Tribunal sets aside demands and penalties

BPL MOBILE COMMUNICATIONS LTD. Versus COMMISSIONER OF C. EX., MUMBAI

The Tribunal held that the value of SIM cards should not be included in the taxable value for service tax calculation. The Supreme Court determined that ... Demand, interest and penalty (service tax) – Alleged that they had deliberately concealed the value of taxable services and furnished inaccurate value by not including the value of SIM charges in the assessable value with intent to evade payment – Held the allegation is not correct and set aside the penalty Issues:- Whether the value of SIM cards should be included in the taxable value for service tax calculation.- Whether the activity of selling SIM cards constitutes a sale of goods or a contract of service.Analysis:1. The case involves providers of cellular telephone services who were not including the value of SIM cards in the taxable value for service tax calculation. The department issued show cause notices alleging deliberate concealment of taxable service value. The Deputy Commissioner confirmed service tax demands and imposed penalties on three appellants. Appeals were filed challenging these decisions.2. The issue regarding the nature of providing telephone connections as a sale of goods or a contract of service was previously decided against the appellants by the Kerala High Court. The matter was appealed to the Supreme Court, which held that if SIM cards are ultimately considered goods, their value cannot be included in the service cost. The Supreme Court remanded the matter to Sales Tax Authorities for further determination.3. The appellants had paid sales tax on SIM cards and accepted the transaction as a sale of goods, not challenging the levy. Therefore, the Tribunal held that service tax cannot be levied on the value of SIM cards based on previous judgments. The Tribunal referred to the case of Idea Mobile Communications Ltd. v. CCE, Trivandrum to support its decision.4. Following the judgments and principles established by the Supreme Court and previous cases, the Tribunal concluded that the levy of service tax and penalties were not sustainable. The impugned orders were set aside, and the appeals were allowed.This comprehensive analysis of the legal judgment highlights the key issues, relevant legal principles, and the reasoning behind the Tribunal's decision.