O R D E R

( 03/01/2017) --- 2 ---PER : S. C. SHARMA, J :- Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are beingdisposed of by this Court. Facts of Writ Petition No. 7631/2014 are narrated hereunder.

The petitioner before this Court, a Company registered under the Companies Act, has filed this present Writ Petition being aggrieved by the final assessment order dated 31/7/2014 read with demand notice dated 31/7/2014 underForm 28 (Rule 40) of the M.P. VAT Act, 2002. It has been stated in the Writ Petition that the petitioner Company has been granted a Unified Access Services Licences (hereinafter referred to as, 'the UASL') by the Central Government for providing telecom services, inter-alia, for the Telecom Circle which is contiguous with the State of Madhya Pradesh and State of Chattisgarh. The petitioner Company provides various kinds of services ie., Cellular, Fixed Line and Broadband services which includes roaming --- 3 --- facilities, STD and ISD and other various value added services to its subscribers. The petitioner is rendering a service.

It has been further stated that the Central Government by Finance Act of 1994 has imposed service tax on the said services of the petitioner and they are assessed to said taxw.e.f. 14/05/2004. The petitioner Company is aggrieved by the action of the respondent – State in levying tax on the services provided by the petitioner Company. The contention of the petitioner is that the respondents have no authority under the Constitution of India to levy service tax on the services rendered by the petitioner and the same cannot be recoveredunder the provisions of the M.P. VAT Act, 2002. It has been further stated by the petitioner Company that levy of service tax on the service rendered by providing SIM Replacement Charges and the Lease Line Revenue and simultaneously levy of VAT by the State of Madhya Pradesh is contrary to the separation of legislative powers envisaged under Article --- 4 --- 246 of the Constitution of India. The petitioner Company has placed reliance upon various judgments delivered by the Hon'ble Supreme Court of India as well as by this Court and their contention is that the case law in respect of overlapping of powers between the State and the Union is well established and there is no scope of overlapping. The petitioner is aggrieved by the action of the State Government in levying VAT on consideration received for providing logistic charges and warranty claims received by the petitioner Company.

The contention of the petitioner is that Central Government by Finance Act of 1994 has imposed “Service tax” on the said service of the petitioners and the petitioners are being assessed to the said tax and the petitioner is payingthe requisite tax w.e.f. May 14, 2004. It is further contended on behalf of the petitioner – service provider that the use/utility of the SIM card remains the same in both the prepaid and the postpaid connections.

In the case of a pre-paid SIM card, service charge is --- 5 --- collected mainly for activating the connection, service tax is paid on this consideration as “telecommunication service”; a SIM card is incidental to the rendering of telecommunication service; SIM cards are not sold by the service provider to the subscribers, and are not chargeable to VAT. Similarly, when a new SIM card is issued in case the old one is lost, the process of activation is the same and again the charges remain the charges for reactivation and cannot be treated as a sale price.

It is submitted by the learned counsel for the petitioner that a Subscriber Identification Module (SIM) card contains a computer chip with prerecorded instructions. It is a device which helps the service provider to identify the subscriber. It also enables the subscriber to