Being aggrieved, the appellant filed appeal before the respective appellate authorities under the KGST Act and Central Excise Act, 1944.
In both the cases interest and penalty were levied.
The Department of Central Excise, Eranakulum Service Tax Department observed that a mere SIM card without Page 2 of 14 activation is of numberuse and held that the appellant is liable to pay service tax on the value of SIM card also.
Based on the judgment of the High Court dated 15.02.2002, the appellant also filed appeal before the Commissioner Appeals , Customs and Central Excise which was dismissed vide order dated 08.04.2003.
The Department of Sales Tax, State of Kerala, included the activation charges as part of the sale companysideration of SIM cards on the ground that activation is numberhing but a value addition of the goods and thus companyes under the definition of goods under the Kerala General Sales Tax Act, 1963 hereinafter referred to as KGST Act and accordingly levied sales tax on activation charges.
ST/18/03 against the order dated 08.04.2003, in which the Page 3 of 14 appellant did number challenge the levy of sales tax as the same was already paid.
1000/ towards sales tax and for activating the SIM Card they were charging Rs.
and vide judgment reported as BSNL vs. Union of India reported in 2006 3 SCC 1, the matter was remanded to the Sales Tax Authorities companycerned for determination of issue relating to SIM cards.
The companynsel appearing for the appellant submitted that the appellant was charging from its subscribers Rs.
20 of 2006.
1,000/ towards sales tax and Rs.
4973 of 2001 P in the High Court of Kerala challenging the levy of service tax on the sale price of SIM cards and also challenging the levy of sales tax on the amounts recovered by the appellant by way of activation charges from its customers which was dismissed vide order dated 15.02.2002.
Aggrieved thereby, the appellant filed Civil Appeal No.
The aforesaid Civil Appeal No.
Aggrieved thereby, the respondent challenged the order of the Tribunal dated 25.05.2006 before the High Court of Kerala by way of Appeal being CE Appeal No.
The appellant preferred appeal u s 35B of Central Excise Act, 1944 before the Central Excise and Service Tax Tribunal hereinafter referred to as TRIBUNAL viz.
As against the order passed by the adjudicating authority, the appellant assessee took up the matter in appeal before the Commissioner of Central Excise Customs, Cochin.
1,200/ as service tax upon activation of the SIM Card and that Page 4 of 14 since they were selling the SIM Cards, therefore, at that point of time, they were charging Rs.
There were companysequential recovery proceedings against the appellant and the appellant filed Writ Petition O.P. No.
2408 of 2002 before this Court was heard and decided with appeals and Writ Petitions of several other telecom operators, including BSNL, BPL etc.
Appeal No.
Dr. MUKUNDAKAM SHARMA, J. Leave granted.
The present appeal is filed against the judgment and order dated 04.09.2008 passed by the Kerala High Court whereby and whereunder, the High Court allowed the appeal filed by the Commissioner of Central Excise Customs, Cochin.
The High Court vide order dated 04.09.2008 allowed the appeal of the respondent department against which this appeal has been filed, upon which, we heard the learned companynsel appearing for the parties.
The facts leading to the filing of the present case are that during the relevant assessment years, i.e., 1997 1999, the appellant was selling the SIM cards to its franchisees and was paying the sales tax to the State and activating the SIM card in the hands of its subscribers on a valuable companysideration and paying service tax only on the activation charges.
2408 of 2002 before this Court.
