2007 (6) TMI 209 - AT - Service Tax

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

KARAKKATTU COMMUNICATIONS Versus COMMISSIONER OF C. EX., COCHIN

The Tribunal determined that the appellants, acting as distributors of cellular mobile telephone service for BSNL, were engaged in the sale of goods ... The appellants were not carrying on the activity of Business Auxiliary Service. They have purchased BSNL post-paid/pre-paid Cellular Sim Cards and sold the same in the market. They have only received certain amount of profit which is ultimately a business practice when goods are sold in the market. The issue pertaining to levy of Sales Tax is already before the Apex court - Demand Set aside 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.