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2019 (3) TMI 1683 - AT - Service TaxClassification of service - Business Auxiliary Service or not - business of Freight Forwarders as a None Vessel Owning Carrier Company - HELD THAT - It is an admitted fact on record that the appeal filed by the said appellant has already been disposed of by the Tribunal vide final order dated 30.09.2015, holding that the services should not be exigible to tax under the category of business auxiliary service. It is noticed that the said final order of the Tribunal was not available at the time of disposal of the appeal by the Learned Commissioner (Appeals). The matter should be remanded to the Learned Commissioner (Appeals) for examination of the final order passed by the Tribunal and to decide its applicability to the facts of the present case - appeal is allowed by way of remand to the Learned Commissioner (Appeals) for deciding the issue afresh.
Issues:
1. Whether the appellant is liable to pay service tax under the category of business auxiliary service for services provided as a None Vessel Owning Carrier Company (NVOCC)? 2. Whether the impugned order passed by the Commissioner of Service Tax (Appeals-I) is valid in relying solely on an interlocutory stay order in a similar case? 3. Whether the matter should be remanded to the Learned Commissioner (Appeals) for examination of a final order passed by the Tribunal in a related case? Analysis: Issue 1: The appellant, engaged in Freight Forwarders business as a None Vessel Owning Carrier Company (NVOCC), provided services categorized under business auxiliary service. The Department initiated proceedings against the appellant for not paying service tax. The activities undertaken by the appellant involved booking slots on ships for customers, logistic management, coordination with port authorities, and customs clearance. The Department concluded that the services fell under business auxiliary service, leading to a service tax demand. The Commissioner (Appeals) upheld this decision, relying on a Tribunal's stay order in a similar case. The Tribunal found that since a final order favoring a similar appellant was issued after the impugned order, the matter should be remanded for reevaluation in light of the final order. Issue 2: The appellant argued that the impugned order wrongly relied on an interlocutory stay order in a case involving M/s. Greenwich Meridian Logistics (I) Pvt. Ltd. The Tribunal had issued a final order in favor of that appellant after the impugned order was passed. The Tribunal agreed with the appellant's contention that the reliance on the stay order was misplaced, as the final order was not available at the time. Therefore, the impugned order was set aside for reconsideration based on the final order. Issue 3: The Tribunal noted that the final order in the case of M/s. Greenwich Meridian Logistics (I) Pvt. Ltd. was not considered during the appellant's proceedings. As the issues in both cases were identical, the Tribunal decided to remand the matter to the Commissioner (Appeals) for a fresh examination in light of the final order. The Tribunal directed the Commissioner to grant the appellant a personal hearing before deciding the issue afresh. In conclusion, the Tribunal set aside the impugned order and allowed the appeal by remanding the case to the Commissioner (Appeals) for a fresh examination considering the final order in a related case and granting the appellant a personal hearing.
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