Virmati Software And Telecommunications Limited Vs Commissioner of Central Excise & ST, Ahmedabad (CESTAT Ahmedabad)
As regards the demand of Rs. 47,43,442/- which represent service tax on difference between the telephone recharge amount received from customers and amount out of the same paid to telecom companies. In this fact, it appears that difference amount is nothing but commission against sale of SIM Cards or recharge of SIM Cards. On this issue various judgments have been passed and some judgments are cited below:-
(a) CCE, Meerut vs. Moradabad Gas Service – 2013 (31) STR 308 (Tri. Del.)
(b) GR Movers vs. CCE, Lucknow – 2013 (30) STR 634 (Tri. Del.)
(c) Daya Shankar Kailash Chand vs. CCE Lucknow – 2013 (30) STR 428 (Tri. Del.)
(d) Omar Agecies (Hutch) vs. Commissioner of C. Ex., Allahabad 2015 (40) S.T.R. 1135 (Tri.- Del.)
(e) Reliance Communication Infrastructure Ltd vs C.S.T., Mumbai-II 2019 (22) G.S.T.L. 223 (Tri- Mumbai)
In view of the above judgments, it prima-facie appears that difference amount between the sale of SIM card / recharge of SIM card and the amount remitted to the telephone company is nothing but only commission on which suffered service tax in the hands of principal. In view of our above observation, the entire matter needs reconsideration. Our views being prima-facie should not influence the findings to be given afresh by the Adjudicating Authority.
