SUDHIR AGARWAL,J. - (1.) Heard learned counsel for parties.
(2.) This appeal under Section 35G of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 has arisen from Final Order dated 16th September, 2015 passed by Customs, Excise and Service Tax Appellate Tribunal, 38, M.G. Marg, Civil Lines, Allahabad in Appeal No. ST/1354/2010, M/s Chotey Lal Radhey Shyam v. Commissioner, Central Excise and Service Tax, Lucknow [2016 (44) S.T.R. 266 (Tribunal)].
(3.) On 20th April, 2016, appeal was admitted on following substantial questions of law:- (i) Whether the Hon'ble CESTAT has erred in confirming the demand of Service Tax along with interest and imposition of penalties (as confirmed in the Order-in-Original, dated 3-10-2010) for the period in question when the "Business Auxiliary Service" was clearly defined under Section 65(19) of the Finance Act, 1994 and included services rendered by the respondent? (iii) When the Hon'ble Apex Court in the case of Idea Mobile Communication reported in 2011 (23) S.T.R. 433 (S.C) has held that the value of SIM card forms part of activation charges as no activation is possible without valid functioning of SIM card and the value of taxable service is calculated on the gross total amount and the present transactions to BSNL and payment by BSNL were different, whether the Hon'ble CESTAT was justified in dropping the demand? (iv) Whether the Hon'ble CESTAT erred in treating it as double taxation when Services are distinct? Service Tax is paid on the full value of SIM card by BSNL under the "Telecommunication Service" and under "Business Auxiliary Service". In the instant case Service Tax has been demanded from the respondent under the category of "Business Auxiliary Service" on the commission received from BSNL, which is different from "Telecom Service". (v) Whether the Hon'ble CESTAT was justified in rejecting the plea of the Department when the Hon'ble CESTAT itself had given detailed reasons for the same vide paragraphs 18 to 21 of the final Order Nos. ST/A/684-687/2012, dated 6-11-2012 in case of M/s. Martend Food and Dehydrates Pvt. Ltd. which was relied upon in this case holding that "The argument that tax should be demanded in situation where somebody else has paid tax on the taxable value of a service is an argument that can be accepted normally" and has itself referred to Board's Circulars?;