2007 (6) TMI 209 - AT - Service Tax

Tribunal: Distributors of mobile services - sale of goods, not service.

The Tribunal determined that the appellants, acting as distributors of cellular mobile telephone service for BSNL, were engaged in the sale of goods ... Business Auxiliary Service - sale of goods - service tax discharged by principal - double taxation - precedential application of ratioBusiness Auxiliary Service - sale of goods - service tax discharged by principal - double taxation - Whether the appellants' activity of purchasing SIM cards from BSNL and reselling them amounted to a taxable 'Business Auxiliary Service' attracting service tax, or constituted 'sale of goods' with BSNL having discharged service tax such that the appellants were not liable to service tax. - HELD THAT: - The Tribunal applied the ratio of an earlier final order addressing identical facts. The factual finding adopted is that the appellants purchased BSNL postpaid/prepaid SIM cards by paying full value to BSNL and subsequently sold those SIM cards in the market at a profit margin. There was no independent service performed by the appellants in the sense of providing a business auxiliary service; the activity was essentially purchase and resale, falling within 'sale of goods' and subject to sales tax. The record includes a clarification from BSNL that it had discharged service tax on SIM cards sold to the distributors. In these circumstances, treating the distributors as additionally liable to service tax would amount to double taxation. Applying the precedent, the impugned order characterising the activity as business auxiliary service was held incorrect and was set aside, the appeal was allowed and consequential relief granted.The appellants' activity is sale of goods, not Business Auxiliary Service; BSNL had discharged service tax on the SIM cards and the impugned order is set aside, appeal allowed with consequential relief.Final Conclusion: Following the precedent on identical facts, the Tribunal held that the distributors' purchase and resale of SIM cards constituted sale of goods (not Business Auxiliary Service), that BSNL had discharged the service tax on those cards, and accordingly the impugned order was set aside and the appeal allowed with consequential relief. Issues:1. Determination of whether the appellants were liable to pay Service tax for acting as distributors of cellular mobile telephone service.2. Interpretation of whether the activities of the appellants fell under the category of 'business auxiliary services.'3. Consideration of whether the appellants were engaged in the purchase and sale of goods or providing a service.4. Assessment of whether the appellants were subject to double taxation due to the payment of Service tax by BSNL.Analysis:1. The appellants were distributors of cellular mobile telephone service for BSNL, and their services were categorized as 'business auxiliary services.' The appellants contended that they were not receiving commission but were trading in cards and discharging sales tax. The appellants relied on a previous ruling in a similar case where it was determined that they were not carrying out business auxiliary services but were engaged in the purchase and sale of goods. The Tribunal found that the appellants had paid the full value for the SIM cards to BSNL and sold them at a profit margin, which falls within the purview of 'sale of goods' attracting sales tax. The Tribunal concluded that the appellants were not providing a service but were involved in a business practice of buying and selling goods.2. The Tribunal examined the correspondence between the appellants and BSNL, where BSNL clarified that they had already paid Service tax on the SIM cards sold to the appellants. This clarification indicated that BSNL had discharged their tax obligation, and there should not be double taxation on the appellants. The Tribunal set aside the impugned order and allowed the appeal, granting consequential relief if any. The decision was based on the precedent set in a similar case, where it was established that the appellants were not liable to pay Service tax as they were engaged in the sale of goods rather than providing a service categorized under business auxiliary services.Therefore, the Tribunal's judgment revolved around the nature of the activities conducted by the appellants, determining whether they constituted the provision of a service or the sale of goods. The clarification provided by BSNL regarding the payment of Service tax on the SIM cards played a crucial role in the decision to set aside the order and allow the appeal. The ruling highlighted the distinction between taxable services and the sale of goods, ultimately leading to the relief granted to the appellants in this case.