TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 1719
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....n the ambit of "Business Support Services" specifically under 'Managing Distribution and Logistics'. As such, the respondent sought to deny the classification of service under Clearing and Forwarding Services. It is further alleged that in the course of providing logistics services, they incurred various expenses under heads, viz., delivery order fees, documentation fees, LCL Charges, BL Charges, etc., and besides this, they also collected ocean / air freight from the clients, which were sought to be added to the assessable value. 1.2 Based on the above allegations a Show Cause Notice dt. 09.02.2011 was issued to the appellants, inter alia asking them to show cause as to why an amount of Rs. 1,13,62,354/- should not be demanded in terms of proviso to Section 73(1) of the Finance Act for the period 01.05.2006 to 31.03.2010, interest should not be imposed in terms of Section 75 and penalty should not be imposed in terms of Section 76, 77 & 78 of the Finance Act, 1994. The appellant-assessee offered their reply dt. 18.07.2011 inter alia contending that: (i) The invocation of extended period was unwarranted as all the facts were within the knowledge of the Department, (ii) The class....
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....onnection with import and export goods. Such transport of goods is a service by itself which is not provided by the appellants and secondly, such a service is not liable for any service tax as it is not one of the services specified as attracting service tax which is supported in Bax Global India Ltd. Vs. Commissioner of Service Tax 2008 (9) S.T.R. 412 (Tri. - Bang.) 4. Per contra, Ld. DR supported the findings of the lower authorities. 5. We have considered the rival contentions and also gone through the judgments relied upon by the Ld. Advocate. We find that the Chennai Bench of CESTAT has addressed this very same dispute in Bax Global India Ltd. Vs. Commissioner of Service Tax, Chennai - 2017 (9) T.M.I. 1264 - CESTAT Chennai. The Bench inter alia held as follows: "5.5 We, however, find that on the same issue, in appellant's own case, the Tribunal in RE : Bax Global India Ltd. Vs CST Bangalore - 2008 (9) STR 412 (Tri.-Bang.) held that amount collected by CHA like cartage revenue, MSIL/JWG charges, due carrier, documentation charges etc. are for services rendered by third party and the appellant initially make payment for the activities on behalf of the client and later collec....
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....vice tax cannot be levied on that activity under the category of CHA services. Similarly, we have seen the break up of all other services. It was already pointed out by the appellants that in certain cases, the appellants directly render certain services which do not relate to CHA and they collect fees directly from the clients. These charges are "charges collect fee", "DO fee", "Currency Adjustment Fee", "Cartage revenue", etc. The appellants have clearly explained the nature of each of these charges. The Commissioner has not discussed the nature of each of the charges and given a finding whether it relates to CHA services. The definition of CHA as given in the Finance Act, 1994, Section 65(35) reads as follows:- (35) "Customs House Agent" means a person licensed, temporarily or otherwise, under the regulations made under sub-section (2) of Section 146 of the Customs Act, 1962 (52 of 1962); (105)(h)?to a client, by a custom house agent in relation to the entry or departure of conveyance or the import or export of goods; Regulation 2(c) of the Customs House Agents Licensing Regulations, 2004 defines customs house agent as under : "(c) "Customs House Agent" means a perso....
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.... they cannot be subjected to service tax in view of the Apex Court decision in the Baroda Electricity Meters Ltd. case (supra). In fine the demand is not sustainable. There is no justification for imposition of any penalty. We set aside the impugned order and allow the appeal with consequential relief." 5.6 The second issue is whether free booking of space in shipping liners would amount to BAS or not. The appellant in respect of demand under BAS. The appellant pre-books the slots even before they get an order from their exporter or other client. It is not the case that the appellants are doing on behalf of client only after they get an export order. The Tribunal in RE : Greenwich Meridian Logistics (I) Pvt. Ltd. Vs CST Mumbai - 2016 (43) STR 215 (Tri.-Mumbai) held that while notional surplus was earned from purchase and sale of space however that it was not by acting for the client. The relevant portion of the order is reproduced below : "11.?Slots may be contracted for by the shipper or its agent with the shipping line through the steamer agent. Implicit is a uni-directional flow of consideration because the space belongs to the shipping line. Steamer agent or agent of shipp....
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....se and sale of space and not by acting for a client who has space or slot on a vessel. Section 65(19) of Finance Act, 1994 will not address these independent principal-to-principal transactions of the appellant and, with the space so purchased being allocable only by the appellant, the shipping line fails in description as client whose services are promoted or marketed." 5.7 Similar view has been expressed by the Tribunal in the case of DHL Lemuir Logistics Pvt Ltd. Vs CCE Thane - 2017 (47) STR 309 (Tri.- Mumbai) wherein the Tribunal held as follows : " 7.In the context of these contra transactions of specified space on the air carrier, we examine the taxable service and the definition thereto. The taxable service according to Section 65(105)(zzb) of Finance Act, 1994 is that provided or agreed to be provided : to a client, by any person in relation to business auxiliary service and relevant extract of Section 65(19) of Finance Act, 1994 defining ‚business auxiliary service‛ is : "any service in relation to xxxx promotion or marketing of service provided by the client;?(ii) or any customer care service provided on behalf of the?(iii) client; or pr....