2013 (7) TMI 179 - AT - Service Tax

Air travel agent - business auxiliary service Section 65 (105) (zzb) r.w. Section 65 (19) - appellant provided service of issuing air tickets and receives commission service tax paid on commission main issue is about taxability of the commission Held that - The services to the foreign airlines have to be treated as export of service in terms of Rule 3 of the Export of Service Rules as decided in Paul Merchants Ltd. Versus Commissioner of Central Excise, Chandigarh (2012 (12) TMI 424 - CESTAT, DELHI (LB)). - Prima facie case is in favor of assessee - stay granted.

Summary

Issues:
Taxability of commission received by the appellant from foreign airlines as General Sales Agent (GSA) in India.

Analysis:
The appellant, an International Air Transport Association (IATA) agent and GSA for foreign airlines, receives commission for issuing air tickets to passengers and also a 3% commission from airlines on flown basis. The dispute revolves around whether the appellant is liable to pay service tax on the 3% commission received from foreign airlines HANNAIR, S.N. Brussels, and Iceland Airlines, which do not have offices in India. The Jurisdictional Additional Commissioner confirmed a service tax demand against the appellant, imposing penalties under various sections of the Finance Act, 1994. The Commissioner (Appeals) upheld this decision, leading to the current appeal.

The appellant argued that the services provided should be treated as export of service under Rule 3 of the Export of Service Rules since they are general sales agents for foreign airlines without offices in India and receive commission in convertible foreign currency. Citing the judgment in the case of Paul Merchants Ltd., the appellant claimed a strong prima facie case and requested a waiver of the pre-deposit requirement for the appeal.

The Departmental Representative opposed the stay application, stating that the Tribunal's judgment in the Paul Merchants Ltd. case had not been accepted by the department, and the services provided by the appellant should not be considered as export of service. The Department sought conditions to safeguard the interests of revenue.

After considering the arguments and reviewing the records, the Tribunal found that the issue in question was covered by the judgment in the Paul Merchants Ltd. case. It was determined that the services provided by the appellant to foreign airlines should be treated as export of service under Rule 3 of the Export of Service Rules. Consequently, the Tribunal granted the stay application, waiving the pre-deposit requirement for the appeal and staying the recovery of the amount until the appeal's disposal.