2018 (6) TMI 1362 - AT - Service Tax

Non-vessel common carrier's tax liability dispute; Appeal allowed based on freight exemption.

The case involved a non-vessel owning common carrier disputing tax liability on specific components in invoices related to international cargo. The ... Support services of business and commerce - taxability of Freight - basic freight - bunker adjustment factor - terminal handling charges - The impugned order takes note of the discharge of tax on ‘documentation fee’ and discards the claim of the appellant that the disputed components are also freight which, admittedly, did not find fitment in section 65 of Finance Act, 1994 and was specifically excluded under the negative list in section 66D of Finance Act, 1994 and the Place of Provision of Service Rules, 2012 - Held that:- ‘Support service of business or commerce’ are activities that the recipient-client would normally have to undertake to carry out its business of manufacture or service and which includes delivery to the customer but which, instead, is outsourced to the service provider. The facility of ‘international ship and port security’ and ‘special equipment’ could not have been offered by the appellant. Only the shipping line could have offered the facility and, if it was not a constituent of freight costs, as a service provided from outside India for use in India should have been subject to tax under section 66A of Finance Act, 1994 and its successor provisions. The same activity could not have been subject to tax again under section 66 of Finance Act, 1994. The shipping line offers these two facilities in relation to transport of goods. It is, therefore, clear that legislative intent did not cover any facility that was offered on the carrier vessel and any attempt to deviate from the legislative intent would have the absurd outcome of taxing the consideration under two mutually exclusive provisions of Finance Act, 1994. The consideration sought to be taxed is freight and, with freight excluded from tax during the relevant period, the demand cannot be sustained - appeal allowed - decided in favor of appellant. Issues:1. Tax liability on international cargo components in invoices.2. Taxability under pre-negative list and negative list eras.3. Interpretation of 'support services of business and commerce.'4. Consideration received for moving goods as taxable support services.5. Taxability of freight in the logistics industry.6. Exclusion of freight from tax during the relevant period.Detailed Analysis:1. The case involved a non-vessel owning common carrier challenging a tax liability order for specific components in invoices related to international cargo. The appellant accepted custody of cargo carried by shipping lines but disputed the tax liability on certain charges. The adjudicating authority confirmed the demand based on the taxable value of services provided, leading to penalties and interest being imposed.2. The tax liability spanned the pre-negative list and negative list eras. The appellant's activity was considered taxable under the former era as support services chargeable under the Finance Act, 1994. The order noted the exclusion of certain components from tax under the negative list. The appellant's argument that the disputed components were freight exempt under both eras was rejected, leading to the confirmation of tax liability.3. The interpretation of 'support services of business and commerce' was crucial in determining tax liability. The consideration received for moving goods was deemed taxable under this category, as per the legislative intent. The Tribunal's decision in a similar case was cited to support the contention that payments made to shipping lines should be considered as freight and exempt under the relevant regimes.4. The appellant's role in managing distribution and logistics was analyzed to establish tax liability for services rendered. The consideration received for moving goods was viewed as taxable support services, leading to the confirmation of the appellant's tax liability.5. The appellant's involvement in the logistics industry influenced the adjudicating authority's decision to confirm the tax demand. The exclusion of freight from tax during the relevant period was considered, but the authority focused on the taxable value of services provided by the appellant.6. The exclusion of freight from tax during the relevant period was a pivotal factor in setting aside the tax demand. The consideration sought to be taxed was deemed as freight, which was excluded from tax, leading to the appeal being allowed and the impugned order being set aside.Overall, the judgment analyzed various legal aspects, including taxability under different eras, interpretations of support services, and the exclusion of freight from tax, ultimately leading to the setting aside of the tax demand.