TaxTMI 
TaxTMI 
2017 (8) TMI 600
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....ed Counsel argued that issue regarding Break bulk fee is covered by the decision in their Tribunal and own case DHL Lemuir Logistics Pvt. Ltd. Vs. Commr. of Service Tax, Bangalore reported in 2010 (17) STR 266 (Tri.-Bang.). In the said case also service tax was demanded under the category of CHA service for the charges collected as Break bulk fee. He pointed out that in the instant case also demand has been made in respect of amount earned as Break Bulk Fee under the head of CHA Services. The Tribunal in the appellant's own case reported in 2010 (17) STR 266 (Tri.-Bang.), has allowed the benefit. 2.2. Learned Counsel argued that demand has been made on the amount earned as Freight rebate under the head of Business Auxiliary Service. He argued that this issue is squarely covered by decision of Tribunal in their own case reported in 2017 (47) STR 309 (Tri.-Mumbai). He particularly relied on para 5 & 7 of the said decision. 2.3. The Ld. Counsel further pointed out that demand has been raised on the amount collected as Airline Commission during the period July 2003 to March 2004. He pointed out that during the subsequent period they have paid service tax under the category of ....
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....earned under the head of 'Break Bulk Fee'. Ld. Counsel has argued that the said issue is covered by the Tribunal decision in the appellant's own case reported in 2010 (17) STR 266 (Tri.-Bang.). We find that in the said decision Tribunal has held that demand of service tax for the income under the category of CHA service reads as under: "6. We have gone through the records of the case carefully. The appellants had furnished a flow chart indicating the activities undertaken by them. It is seen that the activities in Sl. No.1 to 6 related to activity of the appellants as freight forwarding. This has been clearly explained by the appellant in the submissions. The point urged was that the appellants are engaged in three distinct activities :- (i) Freight forwarding (ii) Customs House Agent (CHA) (iii) Clearing and Forwarding Agent (CFA) We are of the considered opinion that the activity relating to one of the categories could not be subjected to service tax under other category. In other words, the activities relating to Freight forwarding cannot be brought under CHA. The appellants had clearly explained the nature of the charges collected such as Charge Collect fees....
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.... Board's Circular dated June 6, 1997. In these circumstances, even the de novo order suffers from various defects. In the impugned order, the Adjudicating authority has stated that the assessee did not furnish complete accounts duly certified by a Chartered Accountant. Hence we have no other option but to remand the matter to the Original authority once again for deciding the matter only in respect of the computation of the liability after providing an opportunity to the appellants to produce the Certificate from the Chartered Accountant in respect of every deduction claimed by them. As regards the demand under CFA services, the appellant had made a strong case for non-includability of rental income, distribution charges, warehousing and transportation. Such charges are collected under separate contracts. They do not represent the charges for CFA services. The case laws relied on are squarely applicable. The commission received by CFA is only subject to service. As regards the includability or non-includability of the various charges, we have already given our findings in this order. That should be borne in mind by the Adjudicating authority. With these observations, we remand ....
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....airlines they received the commission/incentive. The appellants are not buying and selling space on the airline on behalf of their client but on their own behalf. To consider the activity of buying and selling the taxable activity under the head of BAS, the same should be done on behalf of the client. Thus, if the appellants were selling the space on carrier from the airline directly to the exporters without themselves purchasing the space then it could have been considered as an activity involving promotion of sales. In the instant case the appellant are directly buying themselves and thereafter selling the same to the exporters. In this activity they are receiving incentive and commission based on the total space purchase by them from the airline. This activities can be no stretch of imagination by considered as BAS as for any service to statute the BAS atleast three parties should be involved in the transaction namely the service provider, service recipient and the client. In the instant case there are only two parties in the transaction, the seller of space and the buyer of space. Any commission/incentive received, as a result of this transaction of sale cannot be considered as....