CESTAT | Can service tax be charged on the commission which is the difference between the telephone recharge amount received from customers and amount out of the same paid to telecom companies? Tribunal answers



Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Ramesh Nair (Judicial Member) and Raju (Technical Member) allowed an appeal which was filed against the impugned order which required demand of service tax involved is on three counts:

  1. Demand of Rs. 31,51,929/- for the period upto 01-12-2009, is demand on the sharing of Revenue received by the appellant under joint venture agreement with E.Mitra Societies, under Maintenance and Repair Services.
  2.  Rs. 14,72,339/- is demand where there is no joint venture agreement and the appellant were liable to pay service tax but the service tax was deducted by E.Mitra societies and the same was claimed to have been deposited by the Society.
  3.  Demand of Rs. 47,43,442/- corresponding to appellant’s income relating to difference between the telephone recharge amount paid by the customers and appellant remitted the amount to BSNL, under Business Auxiliary Service.

The Tribunal as regard to the demand of 31,51,929/- found that the overall reading of tripartite agreement, the appellant was the one of the party under joint venture. It was observed that Adjudicating Authority had selectively considered the few clauses of the agreement. Further, the appellant claimed that if overall agreement was read then it was clear that the appellant was partner in joint venture and overall activity was on sharing basis therefore, appellant was not liable to pay service tax. The Tribunal further held that the conclusion arrived by the Commissioner was not proper and legal.

As regards the demand of Rs. 14,72,339/-, the appellant ad submitted that though the appellant was liable to pay service tax but there was no joint venture arrangement for the period 01-12-2009 to 31-03-2011. It was further submitted that the service tax was deducted by E.Mitra and the same was deposited by the society. The Tribunal observed that if it was so, after verification, if it was established that the payment was deducted from the amount paid to the appellant and the same was deposited in the Government exchequer, then prima facie service tax once again cannot be demanded from the appellant.

The appellant had also raised the issue of jurisdiction, he had submitted that since they have raised the bills from Rajasthan and provided service in Rajasthan only, therefore the jurisdiction in that State apply and not Ahmedabad jurisdiction. The Tribunal after perusing Rule-4 of Service Tax Rules, 1994 found that Adjudicating Authority had also not considered the entire provision and it was interpreted in piecemeal and came to the conclusion that appellant falls under Ahmedabad jurisdiction.

As regards the demand of Rs. 47,43,442/- which represented service tax on difference between the telephone recharge amount received from customers and amount out of the same paid to telecom companies the Tribunal observed that difference amount was nothing but commission against sale of SIM Cards or recharge of SIM Cards relying on various judgments of the Tribunal in CCE, Meerut v. Moradabad Gas Service , 2013 (31) STR 308 (Tri. Del.), GR Movers v. CCE, Lucknow , 2013 (30) STR 634 (Tri. Del.), Daya Shankar Kailash Chand v. CCE Lucknow, 2013 (30) STR 428 (Tri. Del.), Omar Agecies (Hutch) v. Commissioner of C. Ex., Allahabad, 2015 (40) S.T.R. 1135 (Tri.- Del.) and Reliance Communication Infrastructure Ltd. v. C.S.T., 2019 (22) G.S.T.L. 223 (Tri- Mumbai).

The Tribunal while allowing the appeal held that difference amount between the sale of SIM card / recharge of SIM card and the amount remitted to the telephone company was nothing but only commission on which suffered service tax in the hands of principal and thus the matter required reconsideration.[Virmati Software and Telecommunications v. CCE &ST, SERVICE TAX Appeal No. 10511 of 2014, decided on 19-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.