2012 (10) TMI 137

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....t such activity amounts to business auxiliary service, raised demand of Service tax against the appellant by way of issuing a Show Cause Notice dated 18.3.2009 proposing to confirm the demand for the period January 2004 to March 2005. The said Show Cause Notice was dropped by the original adjudicating authority on merits, by taking note of various decisions of the Tribunal and holding that such activity amounts to sale and purchase of SIM cards and no service is involved. As he dropped the Show Cause Notice on merits, the appellant's plea on limitation was not considered. 3. The said order of the original adjudicating authority was reviewed by Commissioner, by way of issuance of Show Cause Notice on 14.2.2011, in terms of the provisions ....

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.... clarified that the agreement between them and M/s Bharti Cellular Ltd. is for sale and purchase of SIM cards and no commission is being received by them. On the contrary they are making payments to Airtel Office price of the merchandise invoiced by them to the appellant from time to time. They have further sold the SIM cards and earned some profit margin. As such, the appellant contended that the activity undertaken by them cannot be treated as service inasmuch as the same is purchase and sale of SIM cards on profit margin basis. The Assistant Commissioner subsequently vide his letter dated 9.8.2005 addressed to the appellant accepted their stand that the relationship between the appellant and M/s Bharti Cellular is of seller and buyer ....

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.... new facts came on record. The appellant's activity remained the same even relevant period during the period under correspondence and subsequently also. As such it seems to be a case of change of opinion on the part of the Revenue. When the entire facts were put before the Revenue and Assistant Commissioner had taken a decision on the same and intimate the appellant accordingly, it cannot be said that the appellant had any mala fide on their part to suppress the activity undertaken by them. We find no merit in the contention of the ld. AR that the said disclosure was made in August 2005 whereas the period involved is prior to the same. Even after the disclosure, the Revenue did not issue any Show Cause Notice for the period in question with....