2014 (12) TMI 166 - AT - Service Tax

Waiver of pre-deposit - Revenue found that the appellants were rendering many other services on which they were not paying service tax - Valuation of services - Whether incentives and discounts will form part of value of services under Business Auxiliary Service - Held that - In the case of consideration received for freight we are of the prima facie view that ocean freight was not liable to service tax. While there are specific entries in Finance Act, 1994 levying tax on transportation of goods by road, rail, aircraft, pipeline, etc., there is no entry levying tax on transportation by sea. It has to be reasonably presumed that this is kept outside the tax net and it cannot be taxed under a general entry like business support services. Further it appears that such services are rendered in respect of export cargo. It appears that the expression aircraft operator as defined in Finance Act, 1994 may cover any person who may not be having an aircraft also. But in the case of transportation of goods by air, there is an exemption under Notification 29/2005-S.T. for services rendered for transport of export goods by air. All these aspects are not considered while demanding tax on such charges. The deposits already made are sufficient for the purpose of Section 35F of Central Excise Act made applicable to appeals under Finance Act, 1994. So we grant waiver of pre-deposit of balance dues for admission of appeal. Appellant had not given adequate assistance to adjudicating authority in reconciling the figures appearing in the balance sheets and to explain the nature of services for which charges were being collected by them and also the charges which have been already included in the value of the services on which they have paid service tax. Since the applicants understand their accounts and returns better than the department it is their duty to explain the figures properly rather than argue that the Revenue has not been able to prove that consideration received is for non-taxable service or that on such consideration received tax has been paid under other heads. While making submissions for a fresh adjudication the appellant is directed to make full submissions in this regard. - Since there are basic flaws in the adjudication order as already pointed out and there is need for readjudication, we consider it proper to set aside the impugned order at this stage itself and remit the matter to the adjudicating authority for a fresh decision after hearing the appellant on all issues. - matter remanded back - Decided in favour of assessee.

Issues Involved:
1. Tax liability on commission, discount, and incentive received from airlines and shipping lines.
2. Tax demand on miscellaneous services like warehousing, loading, unloading, etc.
3. Tax demand on charges collected towards transportation of cargo by sea or air.
4. Tax liability as a recipient of Goods Transport Agency (GTA) services.
5. Adequacy of pre-deposit for admission of appeal.
6. Procedural propriety in adjudication and reconciliation of figures in balance sheets.

Detailed Analysis:

1. Tax Liability on Commission, Discount, and Incentive:
Argument by Appellants: The appellants argued that the amounts received as incentives were due to the price difference between the rate at which space was sold to customers and the price for space on the day of its use. They contended that these activities do not amount to any service and hence should not be taxed under Business Auxiliary Service (BAS).

Revenue's Stand: The Revenue argued that the appellants were engaged in activities such as marketing and canvassing for cargo space and other auxiliary support services, which fall under BAS as per Section 65(19)(ii) of the Finance Act, 1994.

Tribunal's Observation: The Tribunal noted that the tax liability on commission earned was stated to be paid. However, whether incentives and discounts form part of the value of services under BAS needs closer examination with reference to the terms of the contract.

2. Tax Demand on Miscellaneous Services:
Argument by Appellants: The appellants contended that the services like warehousing, loading, unloading, etc., were not for procuring any inputs or input services for their clients but were supporting services. They argued that these should not be classified under Section 65(19)(iv) of BAS before 1-5-2006 and that they had already paid tax on such services under other categories like CHA services.

Revenue's Stand: The Revenue maintained that these services amounted to procuring input services for their clients as alleged in the show cause notice (SCN).

Tribunal's Observation: The Tribunal observed that the demand was confirmed under a different clause of Section 65(19)(iv) than what was proposed in the SCN. This part of the demand requires re-adjudication after hearing the appellant.

3. Tax Demand on Charges Collected Towards Transportation of Cargo:
Argument by Appellants: The appellants argued that there is no entry in the Finance Act, 1994, levying service tax on ocean freight and that the liability to pay tax on air freight is on the aircraft operator, not on them.

Revenue's Stand: The Revenue contended that the appellants' services in relation to the movement of cargo should be classified under Business Support Service (BSS) as defined under Section 65(104c).

Tribunal's Observation: The Tribunal held that ocean freight was not liable to service tax, and there is no justification to split the amount billed into freight component and other charges. The demand for such charges needs re-examination.

4. Tax Liability as a Recipient of Goods Transport Agency (GTA) Services:
Argument by Appellants: The appellants did not contest the tax liability but argued that the demand was confirmed under Freight Forwarding services/CHA services instead of as a recipient of GTA services as mentioned in the SCN.

Revenue's Stand: No specific submissions were made by the Revenue on this issue.

Tribunal's Observation: The Tribunal noted the discrepancy between the proposal in the SCN and the finding in the adjudication order, which needs to be addressed.

5. Adequacy of Pre-deposit for Admission of Appeal:
Tribunal's Observation: The Tribunal found that the major component of the demand was on account of airfreight and ocean freight charges, for which waiver of pre-deposit has been granted in similar cases. Considering the basic flaws in the adjudication order, the deposits already made were deemed sufficient for the purpose of Section 35F of the Central Excise Act.

6. Procedural Propriety in Adjudication and Reconciliation of Figures:
Tribunal's Observation: The Tribunal noted that the appellants had not adequately assisted the adjudicating authority in reconciling the figures in the balance sheets. It is the duty of the appellants to explain the figures properly during re-adjudication.

Conclusion:
The Tribunal set aside the impugned order and remitted the matter to the adjudicating authority for fresh consideration after hearing the appellants on all issues. The Tribunal emphasized that all views expressed were prima facie and all issues were kept open for adjudication in the de novo proceedings. The deficiencies in the adjudication process should be addressed in the re-adjudication.

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