2012 (10) TMI 682 - Commissioner - Service Tax

Commissioner rules demand time-barred, no service tax on commission. Clear notice crucial. Order-in-Original set aside.

The Commissioner ruled in favor of the appellant, finding the demand for the earlier period time-barred and determining the appellant not liable to pay ... CHA - Demand of service tax, interest and penalty – appellant had received sea freight commission/brokerage at the rate of 2% on ocean freight under pre-paid terms from the liner/carrier/forwarder for availing their service to various destinations in connection with supporting of their business of liner/carrier/forwarders during the course of providing output service – Held that:- Primary service of the appellant is CHA and the booking of export cargo with Shipping lines is their secondary service - appellant is not liable to pay Service tax on the 2% incentive/commission received from shipping lines/freight forwarders - SCN issued by the Department was vague as it did not specify under which specific clause of “Business Auxiliary Service”, the activity of the appellant falls into - Order-in-Original has traveled beyond the Show Cause Notice by specifying the activity of appellant falls within the ambit of Section 65(19)(ii) and also liable to tax as commission agent service under the category Business Auxiliary Service - Appeal allowed Issues:- Whether the demand is time-barred.- Whether the appellant is liable to pay service tax on the 2% commission/incentive received from shipping liners/freight forwarders.Analysis:Issue 1: Time LimitationThe appellant argued that the demand for the period 2004-2005 to 30-11-2007 is time-barred as the show cause notice was issued on 15-12-2008. The Commissioner agreed, stating that the demand for the period before 1-12-2007 is time-barred, and only the demand for the period from 1-12-2007 onward is valid. The Commissioner emphasized that when returns are regularly filed and service tax is paid, the Department is aware of the activities, negating the suppression of facts.Issue 2: Liability for Service TaxThe appellant contended that they are not liable to pay service tax on the 2% commission/incentive received from shipping liners/freight forwarders. The Commissioner referenced a similar case where it was held that commission received for booking export cargo cannot be taxed under Business Auxiliary Services. The Commissioner found that the primary service of the appellant is Custom House Agent (CHA) service, and the booking of export cargo with Shipping lines is a secondary service. Relying on the previous case law, the Commissioner concluded that the appellant is not liable to pay service tax on the 2% incentive/commission received.The Commissioner also noted that the show cause notice issued by the Department was vague, and the Order-in-Original went beyond the specifics mentioned in the notice. As the order did not align with the show cause notice, the Commissioner found it unsustainable on this ground. Consequently, the Commissioner set aside the Order-in-Original and allowed the appeal.In summary, the Commissioner ruled in favor of the appellant, determining that the demand for the earlier period was time-barred and that the appellant was not liable to pay service tax on the commission/incentive received from shipping liners/freight forwarders. The Commissioner highlighted the importance of clarity in show cause notices and the need for alignment between the notice and the subsequent order.