2015 (7) TMI 1039

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....lties have been confirmed against the appellant in the impugned order. The break-up of the demands are as follows: S. No. Nature of demand Amount confirmed Period of demand 1. Wrong CENVAT credit uitilisation under Rule 6 CENVAT Credit Rules, 2004 Rs. 2,84,94,797/- April 2006 to March 2007 2. Service tax demand on break bulk fee Rs. 1,60,38,452/- April 2003 to March, 2007 3. Freight rebate Rs. 1,38,38,721 July, 2003 to March, 2007 4. Airline commission Rs. 10,04,001/- July, 2003 to March, 2007 5. Airline Incentive Rs. 23,02,462/- July, 2003 to March, 2007 6. CCX fee Rs. 38,48,221/- July, 2003 to March, 2007 7. Inadmissible CENVAT credit Rs. 8,90,567....

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.... credit could have been utilised by the appellant.  If there is any utilization before 01/04/2008, what can be demanded is only interest on the excess credit utilised and the entire credit cannot be denied.  In this regard he relies on the clarification issued by the Central Board of Excise and Customs vide F.No. 137/72/2008/CX.4 dated 21/11/2008 where this issue has been clarified.  3.2. As regards the service tax demand on break bulk fee, it is his submission that the very same issue was considered by the Bangalore bench of the Tribunal in the appellant's own case vide order dated 29/06/2009 [2010 (17) STR 266] wherein it was held that activities relating to freight forwarding and the charges collected such as charge col....

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....n the case cited supra, the demand is not sustainable. 3.4. As regards the airline commission, the commission is received from the airline for booking of cargo space and collection of charges for cargo space under the IATA agency agreement and the commission is received from the airline as a percentage of the freight amount charged. The appellant's contention is that they are not promoting or marketing the business of the appellants and, therefore, they do not come under the purview of the 'Business Auxiliary Service'.  3.5. Regarding the airline incentives, this incentive is given by the airline to the appellant for achieving agreed volume/target of cargo during a specific time and the incentive is given to promote the airline's....

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.... not taking the credit per se; the credit taken could be carried forward. When the cap was removed on 01/04/2008, the appellant was eligible to utilise the credit also. In the present case what is involved is the utilisation of credit in excess of 20% of the tax payable during the impugned period which was permitted. Therefore, utilising the credit in excess of the limit would attract only interest liability.  The entire service tax itself cannot be denied to the appellant. This position has been clarified by the CBEC vide a circular dated 21/11/2008 cited supra and the Ministry clarified follows:                "Prior to 1.4.2008 [before the amendment in rule 6 (....

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....ate of utilisation of credit till 01/04/2008 when the assessee became entitled for the credit.  Therefore, the adjudicating authority has to re-examine the matter in the light of the CBEC circular dated 21/11/2008. 5.2. Coming to the issue relating to break bulk fee and freight rebate, in view of the decision of this Tribunal in the appellant's own case cited supra, the matter needs re-examination by the adjudicating authority. If the facts are identical the benefit of the said decision cannot be denied by the adjudicating authority. Therefore, the matter needs to go back to the adjudicating authority to examine the issue in the light of the decision passed by this Tribunal in the appellant's own case. 5.3. As regards the demand ....