TaxTMI 
TaxTMI 
2023 (12) TMI 1288
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....ceived from the airlines. The same is reflected in their Profit and Loss Account under the heading "Rebate on Airway Bill". No service tax was paid on these amounts collected. The discount is passed on to their clients and the same is reflected in the expenses side of their Balance sheet. No service tax was paid on this commission amount. (b) "Incentive from Sea" consists of Commission received for the clearance of sea shipments from other agents. No service tax was paid on this income. (c) "Due Agent Collected" consists of the Due Agent amount mentioned in Airway Bill. It consists of charges like CHA, Airport handling, loading, unloading, Terminal Charges payable to IAAI. Regarding these receipts, they stated that the service tax other than CHA charges was paid during the course of investigation. (d) "Agency Charges Collected" consists of Custom House Clearing Charges for which service tax had been charged and paid. (e) "Cargo Forwarding Income" consists of other charges like airport handling, custom house agency charges, import clearing charges, loading charges, transport charges, and other charges. 2. It appeared to the department from the ....
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.... shipper. Mere sale and purchase of cargo space and earning profit in the process is not a taxable activity. (v) The Appellant retains a portion of the discount and the rest is passed on to the customer, namely, the shipper. (vi) There is no finding in the impugned order with reference to the taxability on discount except for observing that any consideration for service by whatever nomenclature by which it is called is liable for tax. (vii) The airline with whom the cargo space is booked is not the client of the Appellant and therefore, the discount is not subject to service tax. The Appellant relies upon the following decisions where in it has been held that freight difference i.e., discount/incentive given by the airline/shipper line is not taxable: (a) Commissioner of Service Tax Vs AVR Cargo (2018) TIOL 2097 (b) Freight Systems India Pvt Ltd. Vs Commissioner of GST & Central Excise (2018) TIOL 3395 (c) Commissioner of Service Tax Vs Karam Freight Movers (2017) 4 GSTL 215 (d) Sindhu Cargo Services Ltd. Vs Commissioner of Service Tax (2019) 24 GSTL 664 (e) Commissioner of Service Tax Vs Continental Carriers (....
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....penses. Further, these amounts were also accounted and not hidden or suppressed by the appellant. The appellant did not discharge service tax on GTA services as they were not aware that being a recipient, they have to discharge service tax. However, the amounts were properly accounted and not suppressed. The SCN issued invoking the extended period therefore, may be set aside. 4. The Learned AR Shri Sathya Narayanan appeared and argued for the department and supported the findings in the impugned order. 5. Heard both sides. 6. The demand of service tax is made under Business Auxiliary Services, Custom House Agency Services and Goods Transport Agency Services. 6.1 It is not disputed that the appellant who is an IATA agent has discharged service tax on the agency commission received by them. The SCN does not raise demand on the agency commission received by the appellant. It is seen that the demand for service tax under Business Auxiliary Services is raised on the discounts/incentives received from Airlines and Shipping lines. In para 5.1.2 of the order, the adjudicating authority has observed as under: "In the instant case, the assessee realized various amounts u....
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....e or purchase of such goods or services;" 6.3 It is thus the case of the department that the airlines and shipping lines are clients of the appellant and the incentives received is a consideration for promotion or marketing of services provided by the client. The Learned Counsel has countered these allegations by submitting that the appellant does not do any activity of promotion or marketing of the airlines or the shipping lines. These airlines or shipping lines are not client of the appellant. 6.4 On appreciation of facts, it can be seen that the appellant books the cargo space on various airlines/shipping lines and pay freight for the same. The appellant collects the freight from the shippers for the space and transportation of the cargo. In some occasions, the total amount paid to the airline/shipping line may be less than the amount the appellant, receives as freight charges from their client (importer/exporter). The appellant thus receives a markup. In some cases, when the appellant is unable to sell the total space or the freight charges collected from the client is less, appellant may incur loss. It is thus trading of cargo space, where there may be profit or loss to ....
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....it gained there from. (h) The issue stands decided by various benches of Tribunal in the cases of Satkar Logistics [2021-TIOL-543-CESTAT-DEL], Nilja Shipping Pvt. Ltd. [2020-TIOL-461-CESTAT-MAD], Surya Shipping [2019-TIOL-249-CESTATAHM], ITC Freight Services [2021-TIOL-445-CESTAT-BANG], etc. ........, 7. We have considered the arguments on both sides and perused the records. For a service tax to be leviable: (a) a service must have been rendered; (b) the service so rendered must be a taxable service within the meaning of Section 65(105) of Chapter V of the Finance Act, 1994; and (c) a consideration must have been paid for that service; 8. If a service is not rendered at all, no service tax can be levied regardless of the fact that an amount has been received. Similarly, if the service so rendered does not squarely fall within the definition of 'taxable service' under Section 65(105), no service tax can be levied. Even if it is doubtful whether the service is taxable or not, the benefit of doubt in respect of the charging section goes in favour of the assessee and against the revenue. The third important element is the c....
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....amount paid to the steamer agent (appellant). Acting on behalf of the shipping line which was nothing but profit made from the trading of space or slots for ocean transport containers. Slots may be contracted for by the shipper or its agent with the shipping line through the steamer agent. There is a uni-directional flow of consideration because the space belongs to the shipping line. The tribunal in the case of Greenwich Meridian Logistics (I) Pvt. Ltd. versus Commr. Of S.T., Mumbai 2016 analysed the issue in detail. It is re-produced as under:- 10. The original authority has proceeded on the assumption that there is only one payment and, that too, for freight charged by the shipping line. He has rejected the possibility of trading in space or slots on vessels by holding that trading in space or slots is a figment and freight is all that is transacted. This is a patent misconstruing of the usage of that expression. Freight, though used colloquially to describe all manner of carriage, is the nomenclature assigned to the consideration for space provided on a vessel for a particular voyage. Freight is charged by the entity that is in possession of space on a vessel from an e....
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.... total consideration in a multimodal transportation contract with a consignor is another distinct principalto-principal transaction. We, therefore, find that freight is paid to the shipping line and freight is collected from client-shippers in two independent transactions. 13. The notional surplus earned thereby arises from purchase 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. 14. We, therefore find no justification for sustaining of the demand and, accordingly, set aside the impugned order. Demands, with interest thereon, and penalties in both orders are set aside. Crossobjections filed by the department are also disposed of. 7. Following the same, we are of the view that the demand cannot sustain and requires to be set aside which we hereby do. The impugned order is set aside. The appeal is allowed with consequential reliefs, if any."....
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....he customers by the appellant should form part of the assessable value, as it cannot be attributed to the freight and it can only be attributed to the services rendered by the appellant which are in the nature of Clearing and Forwarding Agent Services. After examining the books of records and balance sheets of the appellant, demands were raised to charge service tax on this differential amounts. 7. The case of the appellant, on the other hand, is that their earnings from the difference between the amounts charged to their customers for Ocean Freight and the amounts actually paid to the shipping lines is in the nature of profit earned from their business of selling cargo space on the ships. Elaborating on the arrangements, the Learned Counsel explains that at times they book cargo space on the ship as per the customers' specific orders. At other times, they book the cargo space in bulk on the ship in anticipation of the customers' requirement. Their contract with the shipping line is on principal-to-principal basis. Once they book the cargo space on a ship, they are bound to pay the shipping line for the entire cargo space whether or not they are able to get sufficient cust....
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....the margin is his profit. To earn this profit, he also takes the risk of being unable to sell. In the appellant's case, if the space on the ships which it bought cannot be sold to its customers fully, or due to market conditions, or is compelled to sell at lower than purchase price, the appellant incurs loss. In a contrary situation, it gains profits. This activity is a business in itself on account of the appellant and cannot be called a service at all. Neither can the profit earned from such business be termed consideration for service. Respectfully following Satkar Logistics, Nilja Shipping Pvt. Ltd., Surya Shipping and ITC Freight Services, we hold that the appellant is not liable to pay service tax." 26. Similarly, in the case of Seamax Logistics Ltd. v. Commissioner of Central Excise and Service Tax, Tirunelveli, reported in 2018 (7) TMI 262 has held that no service tax is chargeable on the difference between the ocean freight collected from the clients and the ocean freight paid to the shipping lines." 6.8 In the case of CST, New Delhi Vs Karam Freight Movers 2017(4) GSTL 215 (Tri - Del) the very same issue of liability to pay service tax on the brokerage fro....
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....s to be provided by the respondent on behalf of the client, that is, the exporters. The facts of the case indicated that the markup value collected by the respondent from the exporter is an element of profit in the transaction. The respondent when acting as agent on behalf of airlines/shipping lines was discharging service tax w.e.f. 10- 9-2004. However, with reference to amount collected from exporters/shippers the original authority clearly recorded that it is not the case that this amount is a commission earned by the respondent while acting on behalf of the exporter and said mark-up value is of freight charges and are not to be considered as commission. Based on these findings the demand was dropped. We do not find any impropriety in the said finding. The grounds of appeal did not bring any contrary evidence to change such findings. Accordingly, we find no merit in the appeal by Revenue. The appeal is dismissed." 6.9 Though the department filed appeal before the Hon'ble Apex Court against the judgement passed by Tribunal in the case of Greenwich Meridian Logistics (I) Pvt Ltd., the same was dismissed on 1.4.2019 on the grounds of delay, as reported in 2019-TIOL-150-SC-ST. ....
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....mmission agent of the airline/shipping line, Appellant is a CHA, working under the Customs Broker Licensing Regulation 2013. As per Section 65 (35) of Finance Act 1994, the Customs House Agent means a person licensed temporarily or otherwise under the regulations made under sub-section (2) of Section 146 of Customs Act. 6.14 From the above and relying on the decisions discussed in para 6.5 to 6.10, we are of the view that the demand of service tax on incentives under Business Auxiliary Services is not sustainable and requires to be set aside. Ordered accordingly. 7. The next issue is the demand under CHA services. It is not disputed that the appellant has discharged the service tax on agency commission received for CHA services. The demand is raised on the various expenses incurred and reimbursed by client. In para 5.3 to 5.4.2 of the impugned order, the original authority discusses that the appellant has to include the various expenses incurred by them and reimbursed by client in the taxable value. The issue as to whether reimbursable expenses are to be included in the taxable value is settled by the decision of the Hon'ble Apex Court in the case of UOI Vs Intercontinental C....
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....L accounts to conclude that the amounts reflected therein have not been offered for service tax. The reporting of income in the P and L being irrelevant for the purposes of determination of service tax payable, the basis of the impugned assessment is erroneous. 26. It is a well settled position that when a statutory provision or rule addresses a specific scenario, such rule/provision is liable to be interpreted on its own strength and context and one need look no further to alternate sources to seek clarity in regard to the issue that has been addressed by the aforesaid rule/provision. 27. I am conscious of the fact, and indeed Mr. Sundar has repeatedly emphasized, that there is an alternate statutory remedy available in respect of the impugned order and as such there is no warrant for the interference of this Court in extraordinary jurisdiction under Article 226 of the Constitution of India. However, all relevant facts are on record. Both Learned Counsel concur on the position that the agreements that provide for the landmarks or stages of completion of work by the petitioner and consequential payments by the customers, is available with the Department. ....
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....nounced in Court on 13.12.2023) Separate Order (M. AJIT KUMAR) MEMBER (TECHNICAL) Sd/- (SULEKHA BEEVI C.S.) (MEMBER (JUDICIAL) PER CONTRA M. AJIT KUMAR, 13. I have gone through the orders of the learned Member Judicial Ms. Sulekha Beevi C.S. The impugned order of the lower authority covers issue pertaining to three services as below. 1) Service tax payable on Business Auxiliary Service (BAS) 2) Service tax payable on Custom House Agent Service (CHA) 3) Service tax payable on Transport of Goods by road service (GTA) Two of the above services (i.e BAS and GTA) were, as alleged in the SCN, not declared earlier by the Appellant. The appellant had acquiescence to the classification of the non-declar....
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....les underlying section 106 ibid especially in a case of duty evasion would be that the onus is discharged by the Department if it adduces evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of facts sought to be proved. [See; Collector of Customs, Madras & Ors. v. D. Bhoormul [1974] 3 S.C.R. 833] 17. Once a query has been raised by Revenue regarding evasion of duty on specific services rendered by the appellant, adverse inference could be drawn against the appellant if they are not able to provide a satisfactory reply. The initial burden of rebuttal is on the assessee, because the basic facts are within their special knowledge which they have concealed by not filing statutory returns / documents. The appellant has not been able to explain with proper evidence the nature and substance of the sale, discount and commission allowed to them so as to examine the true nature of these activities. In fact in their reply to the SCN they had reworked out the duty payable towards the three services mentioned in the SCN and agreed to pay the balance duty as per their calculations. The Apex Court in Commissioner of Income Tax ....
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....s been submitted by them to the departmental officers. It is drawn based on the facts as available in the company's ledgers following acceptable accounting standards. Hence the profit and loss statement to that extent contains valuable information, which may be relevant to the facts in issue and is necessary to be scrutinized as a part of the compliance verification during the investigation especially since statutory returns were not filed. It was for the Appellant to provide the best possible evidence to the departmental officers. Having chosen to give the profit and loss statement and further having not raised any doubts abouts its accuracy before the learned Adjudicating Authority they cannot do so now. In its judgment in Ideal Security vs. CCE, Allahabad [2011 (23) S.T.R. 66 (Tri. - Del.)] which is germane to this issue, a Cordinate Bench of this Tribunal at Delhi held as under: "9. We do agree with the ld. Appellate Authority in the matter of the discrepancy noticed by him in respect of the considerations received and appearing in different manner in two different statutory documents. While the ST 3 return was statutory document under Finance Act, 1994, the balance-sh....
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....ed on the freight rates, client's preference, route etc." "33. The Commissioner of Central Excise failed to appreciate that in terms of section 65(105)(zzb), taxable services has to be provided to a client by any person in relation to business auxiliary services. In the instant case, the airline is not our client. The incentive cannot be considered as consideration for taxable service." (emphasis added) The relevant provisions of section 65(19) of the Finance Act 1994, (FA 1994) defining BAS, at the relevant time are reproduced below. "Business Auxiliary Service means any service in relation to (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or Explanation - For the removal of doubts, it is hereby declared that for the purpose of this sub-clause, service in relation to promotion or marketing of service provided by the client includes any service provided in relation to promotion or marketing of games of chance, organized, conducted or promoted by the client in whatever form or by whatever name called whether or not c....
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.... cargo. Such collaboration leads to a steady supply of customers for the liners services and helps them achieve a faster turnaround time for the vessels and lesser demurrage to be paid to ports etc. Due to this the demand for the particular liners services increases and correspondingly does their business giving them the capacity to withstand competition from other liners. Hence the issue is whether these services by the Appellant are of a similar nature and are classifiable under the category of BAS as per the terms of the contract, for promotion or marketing of service provided by the client-liners. 23. I find that the Hon'ble Apex Court in Singapore Airlines Ltd. Vs CIT, [Civil Appeal No. 69646965 OF 2015 / 2022 SCC OnLine SC 1588] examined an issue whether 'Supplementary Commission' in the hands of the IATA travel agent, besides the 'Standard Commission' would be subject to Tax Deduction at Source ("TDS") requirements under Section 194H of the Income Tax Act, 1961. The said section requires deduction of TDS at 10% plus surcharge from payments falling under the definition of "Commission" or "Brokerage". The issue arose because within the aviation industry during the relevant ....
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....ellant has sought to rephrase their earlier averments and have resiled on the acquiescence made regarding the classification of the services involved. However, the specifics of the nature and substance of the activity and how the payments are made or accounted between them, the liners and consignors has not been placed before either the Lower Authority or before us. No contract has been shown except for assertions made based on case laws of this Tribunal, on issues of law. Hence although we are the last fact-finding authority, we are left to decide a mixed question of fact and law while being in the dark about facts relevant to the issue. It is this context that the judgment of the Hon'ble Supreme Court in Singapore Airlines (supra) though delivered in a case pertaining to the Income Tax Act, 1961 is relevant. It is a pointer to the fact that the surplus received between the price of advance booking the cargo with the liner and then negotiating the charges with the consignor could have the colour of a 'brokerage' or 'commission' which will be clear only when the terms of engagement between the parties is known. Moreover Section 194H (ibid) referred to "service rendered" as the guid....
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.... space it booked from the shipping line or has to book the cargo from the consignors at a lower rate in a contrary condition. No Service tax is payable on the mark-up as it is only a case of trading. c) undertakes all the legal responsibility and liability for the transportation of the goods and undertakes all the attendant risks. d) are not involved in the promotion or marketing of service provided by the liners who are also not their client. The transaction with the liners are on a principal to principal basis. Discounts received from the liners are not part of the consideration and hence cannot be taxed. 26. Para 28 of the Apex Court's judgment in Sushilaben Indravadan Gandhi & Another v. The New India Assurance Company Limited and Others [Civil Appeal No. 2235 of 2020 / (2021) 7 SCC 151] is relevant to the impugned issue and is reproduced below. "28. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the top....
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..... It has to be stated at the risk of repetition that the expressions 'principal' and 'agent' used in a document are not decisive. The nature of transaction is required to be determined on the basis its substance and not by the nomenclature used. For this the Appellant is required to provide precise data in support of their pleading which are within their knowledge, especially since they also serve as IATA Agents for airlines and get a commission for this activity. The terms "'Agent' and 'principal' are defined by Section 182 of the Indian Contract Act, 1872 which reads as under: 182. An "agent" is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the "principal". According to this definition, an agent never acts on his own behalf but on behalf of another. He either represents his principal in any transaction or dealing with a third person and does not do so in his own capacity. The crucial test of the status of an agent is that his acts binds the principal. As stated by the Hon'ble High Court of Gujarat in Varsha En....
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....lant from the liners are commission or discounts? IX. whether the amount received by the Appellant and reflected in his books of account is purely the differential between the mark-up of the cost of booking cargo and the profit gained therefrom or for a bundle of activities. 29. It is seen that the Appellant after receiving the SCN have themselves worked out the actual amount of service tax payable on BAS and CHA services and presented a table working out the revised duty payable. They have only challenged the Departments allegations of the incentive received from the liners being commission on sales. Further they have distinguished between the commission regularly received from the Airlines on which service tax was being collected whereas discounts received from the airline are based on the volume of goods exported and no service tax is collected and paid on the same. Hence their grievance was that service tax was sought to be collected on discounts received from the airlines. Another view taken was that their activity amounts to export of services and also was a secondary service and hence no tax was leviable. This view was not pleaded before us and the facts were not....
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....intangible, they must be deliverable." (emphasis added) The Hon'ble Apex Court in Commissioner of Service Tax, Delhi Vs Quick Heal Technologies ltd [CIVIL APPEAL NO. 5167 OF 2022 / 2022 (63) G.S.T.L. 385 (S.C.)] has listed out the essential requirement of a transaction for the transfer of the right to use the goods. 52. From the judicial decisions, the settled essential requirement of a transaction for the transfer of the right to use the goods are : (i) it is not the transfer of the property in goods, but it is the right to use the property in goods; (ii) Article 366(29A)(d) read with the latter part of the clause (29A) which uses the words, "and such transfer, delivery or supply"... would indicate that the tax is not on the delivery of the goods used, but on the transfer of the right to use goods regardless of when or whether the goods are delivered for use subject to the condition that the goods should be in existence for use; (iii) in the transaction for the transfer of the right to use goods, delivery of the goods is not a condition precedent, but the delivery of goods may be one of the elements of the transaction; (iv) the ef....
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....cts. Custom House Agent Service (CHA) 32. As seen from the SCN, Revenue was of the opinion that 'Cargo Forwarding Income' and 'Custom House Agency Charges' received by the assessee / appellant are covered under the 'Custom House Agent Service'. Hence the entire 'Cargo Forwarding Income' and the CHA charges including other charges collected while rendering CHA service are covered and chargeable under 'Custom House Agent Service'. The appellant has not challenged the element constituting CHA service sought to be taxed before the Original Authority, except for the taxability of 'agency charges' and 'due agent collected' as these were payments towards handling charges and other charges at the air / sea port and later collected from their clients which is not their income and was not liable to discharge service tax. They recalculated the duty payable minus the said reimbursements and agreed to pay tax as per their calculations. The Original Authority examined the claim of the appellant and reworked out the demand under BAS from Rs 1,56,60,826/- to Rs 75,51,924/. He however did not exclude the amounts shown towards 'discounts' and 'commission' as these were consideration towards rende....
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....harges and other charges at the air / sea port and later collected from their clients which is not their income and was not liable to discharge service tax. The Hon'ble Supreme Court's judgment in Union Of India vs M/S Intercontinental Consultants and Technocrats Pvt Ltd [Civil Appeal No. 2013 OF 2014/ 2018 (10) G.S.T.L. 401 (SC)] examined the expression 'such' occurring in Section 67 of the Act. It held that the value of taxable service shall be the gross amount charged by the service provider 'for such service' and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. Hence these stated 'reimbursable charges' are to be examined for facts and if shown to be not part of the gross amount charged as per agreement / contractual obligations, then the amounts need to be deducted from the assessable value before arriving at the tax to be paid, not otherwise. Suppression of Facts and Penalty 35. The appellant has submitted that the demand has been confirmed invoking extended period of time which is incorrect and unwarranted. In the present case, the period covered by the impugned order is from 2010 to 2....
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....ace of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the `inscrutable face of a Sphinx'." The Hon'ble Court, in the above judgment summarized and laid down the following principles relating to a 'speaking order': "51. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component ....
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....irement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". The summary has been quoted extensively so as to be a guide to quasiJudicial Officers who may have missed the import of the judgment initially and can be guided by the principles stated therein. In the light of the gaps found both in the pleadings and in the impugned order, it is felt that a finding of fact on the lis as expected from the Tribunal is not possible. 36. I find that the impugned order has failed to make a determination of the issues of fact and law in a manner required by the statute and requires to be redetermined afresh to prevent a failure of justice. A decision take ipse dixit at this stage would not help making good law by the last fact-finding Authority. Further it may also be relevant to examine whether the purported activity of the Appellant sought to be classified as BAS was incidental to its activity as a CHA or not. However as regards Service tax paid on 'Transport of Goods by road service' (GTA), the matter has reached a finality as the issue is not contested by the Appellant. 37. I find that the determination of the appeal arising from the impug....