TaxTMI 
TaxTMI 
2023 (12) TMI 911
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....sistance in procuring Foreign Exchange from authorised money changers, and assistance in filling up the application form for obtaining visa, and receives consideration for the same. 3. The travel agents can discharge service tax liability by opting either of the two options provided:- (i) At the full rate of service tax on commission received; or (ii) At the value and rates prescribed under rule 6(7) of the Service Tax Rules, 1994 1994 Rules. 4. This position continues even after introduction of negative list regime on 01.07.2012. The appellant opted to discharge the service tax liability provided under rule 6(7) of the 1994 Rules. 5. The department issued a show cause notice dated 21.10.2013 to the appellant proposing to raise a demand of service tax of Rs. 19,37,278/- on the incentives received. It also proposed to deny CENVAT credit of Rs. 7,13,481/- availed on the strength of invoices issued by Himani Modi. Penalties on the appellant under sections 76, 77 and 78 of the Finance Act 1994 the Finance Act and interest under section 75 of the Finance Act and rule 14 of the CENVAT Credit Rules, 2004 the CENVAT Rules were also proposed. 6. The appellant f....
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....'air travel agent' services, which services cannot be said to be for 'promotion or marketing' for the airlines. 14. The Larger Bench also examined whether the air travel agent is promoting the business of CRS Companies and it was observed: "60. It is seen that the CRS commission is paid to a travel agent if he is able to attain an agreed level of segments to be booked. A passenger is not aware of the CRS Company being utilized by the travel agent for booking the segment nor can a passenger influence a travel agent to avail the services of a particular CRS Company. What is important to notice is that for an activity to qualify as "promotional", the person before whom the promotional activity is undertaken should be able to use the services. The passenger cannot directly use the CRS software provided by the Company to book an airline ticket. It cannot, therefore, be said that a travel agent is promoting any activity before the passenger. 61. The matter can be examined from another aspect. For booking a ticket, a travel agent would require a system to book the tickets. A travel agent is free to choose any CRS system. A passenger would never request a travel agent ....
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.... therefore, are not levaible to service tax under section 67 of the Finance Act." 16. Thus, in view of the aforesaid decision of the Larger Bench of the Tribunal in Kafila Hospitality, service tax could not have been demanded from the appellant under BAS on the incentives that were received from CRS Companies and Air Lines on sale of tickets. Second Issue 17. This issue is regarding non-payment of service tax under BAS on the service charges received by the appellant from clients for visa consultation. The appellant assists the travellers in filling up the application forms for obtaining VISA. The assistance involves help in preparation of the documents, filing up details and submission of the application. For this activity, the appellant recovers service charges from the travellers. The services rendered by the appellant are not covered under the definition of BAS as the appellant is not involved in promotion and marketing or sale of any goods or service nor is the appellant providing any customer care service on behalf of the client or procuring goods or services which are inputs for the client. While providing such services, the appellant does not act as an agent of the....
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....provided by a visa facilitator, in the form of assistance to individuals directly, to obtain a visa, does not fall under any of the taxable services under section 65(105) of the Finance Act, 1994. Hence service tax is not attracted. "4. However, service tax is leviable on any service provided other than assistance directly to individuals for obtaining visa, falling under the description of any taxable service, as classifiable under the appropriate heading. To cite a few instances, where in addition to rendering assistance directly to individuals for obtaining visa, visa facilitators may also act as agents of recruitment or of foreign employer, in which case, service tax is leviable to the extent under the service of 'supply of manpower'. In certain other cases, for example, a visa facilitator, may be rendering visa assistance to individuals who are employed in a business entity, but the service charge may be paid by the business entity on behalf of those individuals, to the visa facilitator, in which case, service tax is leviable under 'business support service'." 6. In view of the stand taken by the Board that the service rendered by the appellant does not fall u....
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....ordingly, set aside. Fourth Issue 23. This issue relates to non-payment of service tax under BAS on the incentives received from Foreign Exchange brokers. 24. The submission of the learned counsel for the appellant is that activities of the appellant would not be covered under any of the clauses of BAS. The passenger tenders money to Foreign Exchange vendor directly without any intervention of the appellant. 25. The appellant is not an authorized money changer as per the Reserve Bank of India requirement. Thus, for the Foreign Exchange required by the passenger, the payment is made directly by the passenger in the name of authorized money changer. The authorized money changer makes payment of incentive on its own to the appellant as per their policy and market rates of Foreign Exchange from time to time. The appellant does not raise any invoice on the authorized money changer. The appellant is not involved in promotion or marketing or sale of any goods or services nor is the appellant providing any customer care service on behalf of the client or procuring goods or services for the client. The client or the service recipient are the Foreign Exchange brokers who pay for ....
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....t has been denied solely on the ground of wrong address of the service provider. There is no dispute on receipt of service and payment made. According to the appellant, the issue of PAN based registration has been decided in favour of the appellant meaning thereby that registration of the service provider is not in dispute. Thus, once registration of service provider and rendition of service and payment thereof is not in dispute, mere mention of the wrong address is a procedural defect and CENVAT credit cannot be denied for this reason. 34. In this connection, reference can be made of the decision of the Tribunal in Toll (I) Logistics Pvt. Ltd. vs. Commissioner of Central Excise, Pune-I 2016 (41) S.T.R. 80 (Tri.-Mumbai) and the relevant paragraphs are reproduced below: "4.2 Further, learned Counsel states that Cenvat Credit Rules, 2004 lays more thrust on substantive provision and less on the procedural provisions. Once the substantive provisions are complied with for a mere technical lapse the right to Cenvat credit cannot be denied to the appellant. As appellant had satisfied all requirements except relating to address on invoice, which being a mere technical lapse sh....