2024 (5) TMI 524 - AT - Service Tax

Court Affirms No Service Tax on Commission from Spice Telecommunications Under Business Auxiliary Service.

M/s ABS Communication Versus Commissioner of Central Excise and ST, Ludhiana

The Tribunal set aside the impugned order, determining that the appellant was not liable to pay service tax under 'Business Auxiliary Service' as per ... Levy of service tax - Business Auxiliary Service - commission received from M/s Spice Telecommunications Ltd. - HELD THAT:- The Commission received by the appellant are for sale of SIM Cards and other products of M/s Spice Communication Ltd. The service tax has already been paid by M/s Spice Communication Ltd. on the product sold by the appellant. This issue is no more rest integra and has been settled by the various decisions of the Tribunal - reliance placed in the case of COMMISSIONER OF CGST AND CENTRAL EXCISE VERSUS M/S RAMA SALES AND SERVICES [2018 (3) TMI 556 - ALLAHABAD HIGH COURT] the Hon’ble Allahabad High Court held that purchase and sale of SIM Cards by franshisee/distributors appointed by telecom companies not leviable to Service Tax under category of Business Auxiliary Service especially when such companies already discharged service tax on gross amount of Such SIM cards and charging any further service tax on same amount would lead to double taxation. Similarly, in the case of Dyal Medicos [2014 (11) TMI 1136 - CESTAT NEW DELHI] it was held by the Tribunal that commission on SIM Cards of BSNL where service tax has already been discharged by BSNL on full value of SIM cards, separate commission is not payable. The impugned order is not sustainable in law and the same is set aside - Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether amounts received by a distributor/franchisee for sale of SIM cards and related prepaid products constitute consideration for 'Business Auxiliary Service' under Section 65(19) of the Finance Act, 1994 (as relevant for service tax), thereby attracting service tax. 2. Whether a second levy of service tax on commission/margin earned by a distributor/franchisee is permissible where the principal telecom company has already discharged service tax on the gross value of the SIM cards/products. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Characterisation of receipts from sale of SIM cards/prepaid products as Business Auxiliary Service Legal framework: Section 65(19) (definition of 'Business Auxiliary Service') and related charging provisions under the service tax regime as applicable by virtue of the Finance Act, 1994. Precedent Treatment: Tribunal and High Court decisions (as cited in the judgment) have considered similar arrangements and uniformly held that pure purchase-and-resale activities by franchisees/distributors of telecom SIM cards and prepaid products do not attract service tax as business auxiliary services where the distributor independently procures, stocks and sells the goods. Interpretation and reasoning: The Court examined the factual matrix - distributor maintained own sales network, paid salaries, stocked goods, sold to dealers on own account, and operated without dispatch directions or control by the principal telecom company. The Court found the receipts to be margins on sale/purchase transactions (profit on resale) rather than remuneration for provision of a service to the principal. The essential question is whether the activity is one of trading in goods (outside service tax) or a service (business auxiliary service). Where the activity is bona fide trading - purchase, storage, risk-bearing, and resale - it lacks the service element contemplated by Section 65(19). Ratio vs. Obiter: Ratio - Characterisation of distributor's receipts as sale/profit on resale (not business auxiliary service) when distributor operates independently and bears commercial risk. Obiter - Observations about corporate labeling of receipts as 'commission' being a misnomer where factual circumstances show a sale-purchase relationship. Conclusion: The amounts received by the distributor for sale of SIM cards and related products are not consideration for Business Auxiliary Service under Section 65(19) but are margins arising from sale-purchase transactions; therefore, no service tax liability arises on that basis. Issue 2 - Permissibility of a second service tax levy where the principal has already discharged tax on the gross value Legal framework: Principle against double taxation and the scheme of service tax levy; interaction between tax discharged by the principal supplier of goods and taxation of downstream receipts (commissions/margins) claimed by distributors under service tax heads. Precedent Treatment: The Court relied on prior Tribunal decisions and an authoritative decision of the High Court which held that where a telecom company has discharged service tax on the gross value of SIM cards, imposing service tax again on amounts received by distributors/franchisees results in double taxation and is impermissible. The departmental appeals against those rulings were dismissed. Interpretation and reasoning: The Court accepted that the principal had already paid service tax on the product sold by the distributor and that imposing additional service tax on the distributor's receipts (characterised by Revenue as commission) would tax the same transaction twice. Given the factual finding that the distributor's receipts are sales margins (Issue 1), and given the prior adjudications preventing re-taxation, a second levy would be inconsistent with the statutory scheme and established precedent. Ratio vs. Obiter: Ratio - Where service tax has been discharged by the principal on the gross value of SIM cards/products, charging service tax again on distributor's receipts amounts to double taxation and is not warranted; hence a second levy is impermissible. Obiter - Discussion of potential labels (commission vs. margin) and their effect only insofar as they do not alter factual commercial substance. Conclusion: A further levy of service tax on the distributor's receipts is not sustainable where the principal telecom company has already discharged service tax on the full value of the SIM cards/products; applying service tax a second time would cause impermissible double taxation. Cross-references and Consolidated Conclusion Both issues are interlinked: factual characterisation (trading margin vs. service/commission) determines taxability under Section 65(19), and where the principal has paid tax on the gross value, an additional levy on the distributor's receipts is barred by the principle against double taxation and consistent prior judicial rulings. Applying these principles, the impugned order confirming service tax demand was set aside and the appeal allowed with consequential reliefs as per law.