Commissioner Of Central Excise vs Idea Cellular Ltd

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.ST/320/09

(Arising out of Order-in-Appeal No.PIII/VM/173/09 dated 21/08/2009 passed by Commissioner of Central Excise (Appeals), Pune-III)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Commissioner of Central Excise, Pune-III Appellant

Vs. Idea Cellular Ltd., Respondent Appearance:

Shri.R.K.Das, Dy. Comm. (AR) for appellant Shri.S.S.Gupta, Consultant, for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical)

Date of Hearing : 12/02/2015 Date of Decision : 12/02/2015

ORDER NO

Per: M.V. Ravindran

1. This appeal is filed by the Revenue against Order-in-Appeal No.PIII/VM/173/09 dated 21/08/2009 passed by Commissioner of Central Excise (Appeals), Pune-III.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding the difference in service tax liability on the SIM cards, which are sold by the respondent prior to 14/05/2003 and the rent collection against the such SIM cards. It is the case of the revenue that the rate of service tax increased from 5% to 8% with effect from 14/05/2003, however, the appellant has discharged service tax at 5% on the service tax on the said SIM cards which were activated after 14/05/2003. It is his submission that the first appellate authority has erred in setting aside the demands on merits as this Bench in the case of Bharati Tele-Ventures Ltd., Vs. CCE, Pune-III  2014 (33) STR 86 (Tri  Mumbai) has held in favour of the department.

4. Learned CA on the other hand would submit that on merits the issue decided by this Bench against assessee. It is his submission that the limitation aspect needs to be addressed by the Bench as the show-cause notice in this case is issued on 27/07/2006 demanding service tax for the period May 2003. He would submit that in the case of Bharati Tele Ventures Ltd. (supra), the Bench has taken a view that extended period cannot be invoked a similar situation.

5. After considering the submissions made by both the sides and perusal of the judgement of this Tribunal in the case of Bharati Tele-Ventures Ltd. (supra), we find that on merits, the issue is decided against the respondent/assessee. At the same time, we do find that the Bench has specifically recorded a finding the extended period cannot be invoked as the assessees records are audited by the department. We find that in the case in hand, except making statement in the grounds of appeal that there is a suppression; no evidence is adduced that the appellant had suppressed the information from the department On the other hand we do find that the appellant has been filing regular returns which indicated the discharge of service tax liability @ 5%. We find that the impugned order holding there was no suppression of facts and hence the demand needs to be set aside on limitation is correct and does not require any interference.

6. The appeal filed by the Revenue is rejected on the ground that extended period cannot be invoked in this case.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial)

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