ORDER
P.G. Chacko, Member (J)
1. In the impugned order, learned Commissioner has demanded service tax of over Rs. 1.80 crores from the appellants for the periods 1995 – 98 and March 2004 to February 2007 and has also imposed penalties on them.
2. After examining the records and hearing both sides, we note that the substantive issue in this case is whether, on the value of SIM cards sold by the assessee during the above was paid by them on such value. It is the case of the Revenue, reiterated by learned SDR today, that sale of SIM cards is only incidental to a taxable service being provided by the assessee and therefore, in terms of the Hon’ble Supreme Court’s decision in BSNL v. Union of India 2006 (2) STR 161 (SC), service tax is leviable and sales tax is not. Thus the issue is contentious. But the assessee is armed with two decisions of coordinate Benches of this Tribunal viz. BPL Mobile Communications v. CCE, Mumbai 2007-TIOL-435-CESTAT-MUM. and Idea Mobile v. CCE 2006-TIOL-857-CESTAT-BANG., wherein it was held that the said assessees, having paid sales tax on SIM card value, were not liable to pay service tax on such value. In view of the said decisions, we are inclined to grant waiver of predeposit and stay of recovery in respect of the service tax and penalty amounts demanded by the Commissioner. It is ordered accordingly.
(Dictated and pronounced in open Court)