2018 (5) TMI 1473

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....t the respondents are rendering Custom House Agent Service, Cargo handling Service, Business Auxiliary Service and Goods Transport Agency Service. During the audit conducted, it was noticed that (a) They have not paid service tax of Rs. 10,41,855/- on terminal handling charges for the period 2006 - 07 and 2007 - 08. (b) They have not paid service tax on the entire amount collected as transport charges from their clients during the period January 2005 to March 2008 and there was short payment of service tax on transport charges to the tune of Rs. 1,84,945/-. (c) There was short payment of service tax on local transport charges amounting to Rs. 416/- by wrongly availing Notification No. 34/2004-ST dated 3.12.2004. (d) They are liable to p....

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....dded their own margin and there is a difference between the amount charged by airport authorities and the amount collected by the service provider (respondent) from their clients. Though the provider of custom house agent service is eligible for exclusion of expenses incurred by them, while providing taxable service, it is subject to the condition that the custom house agent recovers only such amount as has been paid by him as third party to procure such services that are received and used by their clients. Hence the respondents having collected additional service charges do not qualify within the scope of „pure agent‟ and are liable to pay service tax on the terminal charges collected from the clients. The Commissioner (Appeals....

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....is no clarity in the show cause notice or the orders passed by authorities below as to how the airway bill fees and freight charges taxable under BAS. The adjudicating authority has considered the issue in para 16.5 to 16.7 and referred to the Stay Order No. 391/2009 dated 11.5.2009 in para 16.8 in respect of the respondent‟s own case. The said appeal pending before the Tribunal was disposed vide Final Order No. 42242 to 42244/2017 dated 20.9.2017 wherein the issue was held in favour of the respondent. The Tribunal in the said appeal had discussed whether the freight difference which is accounted as incentive / discount, overriding commission, market price adjustment etc. is subject to levy of service tax and all these issues were dec....

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....gation and in the respondent‟s own case vide the final order cited supra held in favour of the respondent. Similarly, the reimbursable expenses whether subject to levy of service tax was also under litigation and was finally settled by the Hon'ble Supreme Court in the case of Union of India Vs. Intercontinental Consultants and Technocrats Pvt. Ltd. - 2018 (10) GSTL 401 (SC). Al these issues were under litigation and therefore the contention of the ld. consultant for the respondent that they were under bonafide belief that these amounts are not subject to levy of service tax and had not paid the service tax has been accepted by the Commissioner (Appeals) to set aside the demand upto 1.10.2007 on the ground of limitation. On perusal of ....