Decided on January 16,2015

C.B. Mor Cellular Appellant
Commissioner Of Central Excise, Nagpur Respondents


RAMESH NAIR, MEMBER (J) - (1.)THE appeal is directed against order -in -appeal No. PVR/173/NGP/2013 dated March 14, 2013 passed by the Commissioner of Central Excise and Customs (Appeals), Nagpur, wherein the learned Commissioner (Appeals) rejected the appeal filed by the appellant against order -in -original No. 09/VW/JC/ST/2012 dated March 12, 2012. The fact of the case is that the appellant is an authorised distributor of BSNL products and is engaged in sale and purchase of BSNL SIM cards and recharge vouchers under franchise agreement with BSNL since April 2006. For this activity, they get commission from BSNL at fixed rates on the sale of SIM cards. A show -cause notice dated 14/16, July, 2010 was issued to the appellant for demand of service tax on the commission received by the appellant from BSNL under the category of "business auxiliary service". It was adjudicated by the adjudicating authority vide order dated March 12, 2012, wherein the demand of service tax on the commission amounting to Rs. 6,15,005 was confirmed and demanded interest under section 75, penalties under sections 76, 77 and 78 were also imposed. The appellant filed appeal before the Commissioner (Appeals) who rejected the appeal of the appellant. Therefore, the appellant is before me.
(2.)Shri D.H. Nadkarni, learned counsel for the appellant, submits that the appellant has paid the service tax along with interest. Majority amount was paid prior to issuance of show -cause notice and part amount was paid after the show -cause notice and a small amount was paid after adjudication. He submits that the appellant is not contesting the demand of service tax which they have admittedly paid along with interest. He submits that before the Commissioner (Appeals) also they have not contested the demand but they prayed for waiver of the penalties in terms of section 80 of the Finance Act, 1994. It is his submission that the very service of commission on sale of SIM cards of BSNL is not taxable as has been held in various judgments. He placed reliance on the following judgments:
"(a) G.R. Movers v. CCE, Lucknow : [2014] 3 VST -OL 143 (CESTAT -New Delhi); [2013] 30 STR 634 (Trib. -Delhi);

(b) Daya Shankar Kailash Chand v. Commissioner of Central Excise & Service Tax, Lucknow reported in : [2013] 30 STR 428 (Trib. -Delhi)

(c) CCE, Meerut v. Virendra Electric Works reported in, [2013] 6 TMI 317 (CESTAT -New Delhi)"

He submits that in view of the above judgments, the service tax was not payable and consequently, no penalty could have been imposed. It is his submission that in view of the settled legal position on taxability of the service in question, the penalties are required to be waived. However, he submits that since the appellant is not contesting the demand of service tax and payment thereof, he undertook not to claim refund of the same based on the instruction of the appellant.

(3.)ON the other hand, Shri S.V. Nair, learned Assistant Commissioner (Authorised Representative), appearing on behalf of the Revenue, reiterates the findings in the impugned order.

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