2018 (12) TMI 439

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....)", which has been held as includable in the taxable value for the purpose of levy of Service Tax by the lower adjudicating authority and same has been confirmed by the learned Commissioner (Appeals) in his order dated 09.05.2014. The appellants are before us against this order of the Commissioner (Appeals). 2. It has been contended by the learned advocate appearing for the appellant that the value received by them for providing the 'sale of post paid SIM', 'sale of Anant plan' etc. is not on account of taxable service but same is purely the 'sale of SIM card' and on which, the appropriate tax under Sales Tax Act has also been paid by them and therefore, same is not taxable under the Service Tax Act. 3. We have heard both the sides an....

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....ically the end of the matter and signifies the conclusion. 18. The sales tax authorities have themselves conceded the position before the High Court that no assessment of sales tax would be made on the sale value of the SIM Card supplied by the appellant to their customers irrespective of the fact whether they have filed returns and remitted tax or not. It also cannot be disputed that even if sales tax is wrongly remitted and paid that would not absolve them from the responsibility of payment of service tax, if otherwise there is a liability to pay the same. If the article is not susceptible to tax under the Sales Tax Act, the amount of tax paid by the assessee could be refunded as the case may be or, the assessee has to follow the law a....

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.... and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers. The Sales Tax authority understood the aforesaid position that no element of sale is involved in the present transaction." 5. We also find that though the appellant has contended that the amount paid by the customers towards the above mentioned services is either refunded if SIM is not issued or adjusted by them when the SIM is activated towards Service Tax plus service charges. However, on perusal of the record, we find that as per the chart annexed with the Show Cause Notice, the difference between the Service Tax actually paid and payable still remains equal to the service tax demanded and confirmed and therefor....