Sudhir Agarwal, J.Heard learned counsel for parties.

2. This appeal under Section 35G of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 has arisen from Final Order dated 16th September, 2015 passed by Customs, Excise and Service Tax Appellate Tribunal, 38, M.G. Marg, Civil Lines, Allahabad in Appeal No. ST/1354/2010, M/s Chotey Lal Radhey Shyam v. Commissioner, Central Excise and Service Tax, Lucknow [2016 (44) S.T.R. 266 (Tribunal)].

3. On 20th April, 2016, appeal was admitted on following substantial questions of law : -

(i) Whether the Honble CESTAT has erred in not confirming the demand of Service Tax along with interest and imposition of penalties (as confirmed in the Order-in-Original, dated 3-10-2010) for the period in question when the "Business Auxiliary Service" was clearly defined under Section 65(19) of the Finance Act, 1994 and included services rendered by the respondent

(iii) When the Honble Apex Court in the case of Idea Mobile Communication reported in 2011 (23) S.T.R. 433 [LQ/SC/2011/1007] (S.C) has held that the value of SIM card forms part of activation charges as no activation is possible without valid functioning of SIM card and the value of taxable service is calculated on the gross total amount and the present transactions to BSNL and payment by BSNL were different, whether the Honble CESTAT was justified in dropping the demand

(iv) Whether the Honble CESTAT erred in treating it as double taxation when Services are distinct Service Tax is paid on the full value of SIM card by BSNL under the "Telecommunication Service" and not under "Business Auxiliary Service". In the instant case Service Tax has been demanded from the respondent under the category of "Business Auxiliary Service" on the commission received from BSNL, which is different from "Telecom Service".

(v) Whether the Honble CESTAT was justified in rejecting the plea of the Department when the Honble CESTAT itself had given detailed reasons for the same vide paragraphs 18 to 21 of the final Order Nos. ST/A/684-687/2012, dated 6-11-2012 in case of M/s. Martend Food and Dehydrates Pvt. Ltd. which was relied upon in this case holding that "The argument that tax should not be demanded in situation where somebody else has paid tax on the taxable value of a service is not an argument that can be accepted normally" and has itself referred to Boards Circulars

4. We find that similar controversy came up before Tribunal, Principal Bench, New Delhi in Daya Shankar Kailash Chand v. Commissioner of Central Excise and S.T., Lucknow, 2013 (30) S.T.R. 428. After considering judgment of Supreme Court in Idea Mobile Communication Ltd., 2011 (23) S.T.R. 433 [LQ/SC/2011/1007] (S.C.), Tribunal passed following judgment :-

"We have seen the Supreme Courts judgment in the case of Idea Mobile Communication Ltd. [2011 (23) S.T.R. 433 [LQ/SC/2011/1007] (S.C.)]. The issue involved before the Honble Supreme Court was as to whether the value of the SIM cards is required to form part of the activation charges or not. Inasmuch as the issue before the Honble Supreme Court was entirely different than the issue involved in the present case we are of the view that following said decision by Commissioner (Appeals) in preference to the decision of Tribunal on the same issue as involved in the present case is not proper. We also refer to the latest decision in the case of Martend Food and Dehydrates Pvt. Ltd. vide Final Order Nos. ST/A/684-687/2012-Cus., dated 6-11-2012, wherein after taking note of the entire case law available on the said issue, the Tribunal in a detailed order has held that activity of purchase and sale of SIM card belonging to BSNL where BSNL has discharged the Service Tax on the full value of the SIM cards, does not amount to providing business auxiliary services and confirmation of demand on the distributors for the second time is not called for. By following the said decision, we set aside the impugned order and allow the appeal with consequential relief to the appellants."

5. Then, again similar controversy came up in Central Excise Appeal No. 21 of 2013, Commissioner Central Excise v. M/s. Daya Shankar Kailash Chandra Mal [2014 (34) S.T.R. J 99 (All.)] and a Division Bench of this Court consisting of Honble Rajiv Sharma and Honble Dr. Satish Chandra, JJ, vide judgment dated 25th July, 2013 dismissed appeal at admission stage passing following order : -

"Heard Mr. Rajesh Singh Chauhan, learned Counsel for the appellant.

In nutshell, the case of the appellant is that M/s. Daya Shanker Kailash Chandra/respondent having Service Tax Registration under the category of Business Auxiliary Service is a partnership firm which is providing the service on behalf of M/s. Bharat Sanchar Nigam limited (BSNL), a company incorporated under the Companies Act, 1956 for providing services of promotion and marketing/distribution of its various products. During the course of enquiry, it was observed that the respondent neither paid Service Tax amount to Rs. 6,87,387/- including cess during the periods 2008-09 and 2009-10 including April, 2010 nor submitted ST-3 returns as and when required. Accordingly, a show cause notice was issued to the respondent. The case was adjudicated by the Additional Commissioner, Central Excise, Lucknow, vide order dated 25-10-2011, wherein the adjudicating authority confirmed the demand of Rs. 6,87,389/- under the proviso to Section 73(1) of the Finance Act, 1994 along with interest and imposed penalty under (sic) Section 78 of the said Act. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), who, vide order dated 30-4-2012, upheld the order dated 25-10-2011. Thereafter, the respondent filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), which was allowed vide order dated 18-12-2012. Hence, the instant appeal.

After hearing learned Counsel for the appellant, we are of the opinion that no substantial question arises in the instant appeal, in view of the decisions of the Apex Court in the case of Martend Food and Dehydrates Pvt. Ltd. vide final order dated 6-11-2012, wherein it was held that activity of purchase and sale of SIM Card belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards does not amount to providing Business Auxiliary Service. Therefore, no interference is called for.

Accordingly, the appeal is dismissed at the admission stage itself."

6. Judgment of Supreme Court in Idea Mobile Communication Ltd. [2011 (23) S.T.R. 433 [LQ/SC/2011/1007] (S.C.)] (supra) has been considered by Tribunal, Principal Bench, New Delhi and similar issue has already been considered in aforesaid judgment of this Court, with which we do not find any reason to take a different view. Hence, aforesaid questions are answered against Revenue, following aforesaid judgments.

7. Appeal is, accordingly, dismissed. Interim order, if any, shall stand vacated.