S.L. Peeran, Judicial Member. - The stay application and appeal are taken up together for disposal as per law. The appellants were acting as distributors of cellular mobile telephone service for and on behalf of BSNL as per the agreement entered into between them during the period July 2003 to December 2004. Their services have been brought under the category of "business auxiliary services." They are contesting the matter on the ground that the service tax has been discharged by BSNL and they were not getting Commission but were trading in the cards. They were discharging sales tax. Learned counsel relies on the ratio of the ruling of South East Corpn. v.CC,CE&ST [Final Order No. 610 of 2007, dated 25-5-2007] in respect of identical issue and she says that this Bench has already decided the case in assessee’s favour. The said final order refers to the clarification given by BSNL about discharge of service tax on SIM cards sold to the distributors.

2. Heard learned DR who defends the order.

3. We have gone through the cited final order. The findings recorded in para 2 are reproduced herein below :

"2. I have heard both sides in the matter. I am of the considered opinion that the appellants were not carrying on the activity of Business Auxiliary Service. They have purchased BSNL post-paid/pre-paid Cellular SIM Cards and sold the same in the market. They have only received certain amount of profit which is ultimately a business practice when goods are sold in the market. The issue pertaining to levy of Sales Tax is already before the Apex Court. There is no service carried out by the appellants but actually they have done the activity of purchase and sale which comes within the purview of ‘sale of goods’ and sales tax is attracted. The Commissioner (Appeals)’s finding that the appellant is doing the activity of marketing and distribution of products and it comes within the ambit of Business Auxiliary Service is not a correct finding especially, in the light of the appellants having paid full value for the SIM Cards to the BSNL and sold the same on the profit margin. The learned counsel points out to the correspondence with the BSNL, the appellants had on this issue, and the BSNL had clarified that they had already paid service tax on the SIM cards sold to the appellants, this also clearly shows that the BSNL had already discharged their burden and there cannot be double taxation in the peculiar circumstances of the case there is no merit in the impugned order and same is set aside by allowing the appeal with consequential relief if any."

The above order clearly applies to the facts of the case. Respectively following the ratio of the same, the impugned order is set aside and appeal allowed with consequential relief.