2018 (3) TMI 1659

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.... Writ Petition has been filed seeking Writ of Declaration to declare the first respondent and its officers and agents are incompetent either to legislate or to impose and realise sales tax and re-sale tax under any power conferred under serial No 54, List II of the Seventh Schedule to the Constitution of India, on the services provided by Cellular Mobile Telephone service providers, operating under the licence issued by the Department of Telecommunications, Ministry of Communication, Government of India, under Section 4 of the Indian Telegraph Act, 1985, directly or through their distributors or agents like the petitioners by way of recharge coupon and that resultantly the demands and notices requiring payment of such taxes under the provis....

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....question was one of the valuation of these goods The State Sales Tax Authorities had sought to include the activation charges in the cost of the SIM card It was contended by Escotel that the activation was part of the service on which service tax was being paid and could not be included within the purview of the sale The Kerala High Court also dealt with the case of BPL, a service provider According to BPL, it did not sell cellular telephones As far as SIM cards were concerned, it was submitted that they had no sale value A SIM card merely represented a means of the access and identified the subscribers This was part of the service of a telephone connection The Court rejected this submission finding that the SIM card was "goods" within the ....

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....e purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power' * * * There might be overlapping; but the overlapping must be in law The same transaction may involve two or more taxable events in its different aspects But the fact that there is overlapping does not detract from the distinctiveness of the aspects " 19 There cannot be any dispute to the aforesaid position as the appellant itself subsequently has been paying service tax for the entire collection as processing charges for activating cellular phone and paying the service tax on the activation The appellant also accepts the position that activation is a taxable service ....