2013 (8) TMI 451 - AT - Service Tax

Business Auxiliary Service, Business Support Service, Cargo Handling Service and Transport of Goods by Road Service Duty Demand Waiver of pre-deposit - The Revenue was of the view that the value of freight will form part of the value of Business Support Service being provided by the assesse to the importers and exporters and, thus the assesse should have paid service tax - Held that - Freight charges towards ocean freight and air freight cannot be included in the value of Business Support Service Intercontinental Consultants and Technocrafts Pvt. Ltd. Vs Union of India 2012 (12) TMI 150 - DELHI HIGH COURT - the differential element of consideration between the freight charged by the steamer lines and the freight charged by the assesse to the customers/exporters no need to deliver any separate quantification in the order pre-deposit was waived Decided partly in favor of assesse.

Summary

Issues:
- Change of respondent's name in the cause title
- Taxability of freight charges under service tax
- Legality of including freight charges in the value of Business Support Service
- Pre-deposit requirement for appeal

Change of Respondent's Name:
The Tribunal considered two MISC petitions and two stay petitions related to the change of the respondent's name in the cause title from Commissioner of Central Excise to Commissioner of Service Tax, Chennai. The applicants were registered with the Commissionerate of Service Tax, Chennai, and the change was allowed for future proceedings to reflect the correct authority.

Taxability of Freight Charges:
The applicants provided services related to handling export cargo and were registered for various service tax categories. The Revenue contended that the freight amounts recovered by the applicants should be subject to service tax as part of 'Business Support Service.' Two show cause notices were issued for different periods, and substantial amounts were confirmed against the applicant. The core issue revolved around the ocean and air freight charges collected by the applicant.

Legality of Including Freight Charges:
The applicant argued that there was no specific provision under the Finance Act, 1994 for taxing transportation of goods by sea, and air freight was separately covered. The Tribunal had previously ruled that ocean and air freight charges could not be included in the value of Business Support Service for service tax purposes. The applicant also cited a High Court ruling to support their position. The Tribunal decided to waive the pre-deposit requirement for the appeal, considering the debatable nature of the issue.

Pre-Deposit Requirement for Appeal:
The Revenue reiterated its position on the freight charges, emphasizing the difference in charges as commission for promoting the business of steamer agents and airlines. However, the Tribunal upheld its previous decision that freight charges for ocean and air freight could not be subjected to service tax under the Finance Act, 1994. The Tribunal found the issue regarding the differential element of consideration debatable and decided to waive the pre-deposit requirement for the appeal, granting a stay on the collection of dues during the appeal's pendency.