COMMISSIONER OF CENTRAL EXCISE Vs. MORADABAD GAS SERVICE

JUDGEMENT

(1.) THOUGH the appeals filed by the Revenue arises out of two different orders passed by Commissioner (Appeals), all the appeals are being disposed of by a common order as the issue involved is identical.

(2.) After hearing both the sides, we find that the respondents M/ Moradabad Gas Services and M/s. Arya Electronics are franchises of M/s. BSNL for sale of their SIM cards and recharge coupons. Revenue by entertaining a view that such a sale of SIM cards and recharge coupons of BSNL amounts to providing services under the category of 'Business Auxiliary Services' (BAS) u/s. 65(105)(zzb) of the Finance Act, 1994, initiated proceedings against them for confirmation of service tax and for imposition of penalties. The Show Cause Notices (SCNs) issued in this regard resulted in confirmation of demand against the said two respondents and imposition of penalties on M/s. Murari Lal Luxmi Shanker.

(3.) COMMISSIONER (Appeals) did not find favour with the respondents' contention on merits as also on limitation. However, he took into consideration the letters written by BSNL as also statement of their authorised representative and concluded that BSNL has paid the service tax on the entire value of sim cards and recharge coupons. As such by taking note of Board's Circular No. -S.T., dated 13 -10 -1997 as also the Circular No. ST -, dated 7 -1 -2003 held, that where the service tax due on service has been paid by a person, service tax should not be charged on the same from any other person to avoid double taxation. He also took into consideration the precedent decisions of Tribunal and held that as BSNL has already paid service tax under 'telecommunication/telephone service' on the same transaction, service tax cannot be demanded again under any other category from the distributors of BSNL. As such on the said issue, he held in favour of the respondents.