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2018 (8) TMI 2055 - AT - Service TaxLevy of service tax - business of freight forwarding clearing and forwarding and other allied activities - difference between the amounts paid by the appellants to the shipping lines/airlines and the amounts recovered by the appellants from their customers (exporters/importers) is called the mark-up - HELD THAT - The issue is covered in favor of appellant by various benches of the Tribunal - reliance placed in the case of GREENWICH MERIDIAN LOGISTICS (INDIA) PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX MUMBAI 2016 (4) TMI 547 - CESTAT MUMBAI where it was held that notional surplus earned thereby arises from purchases and sale of space and not by acting for a client who has space or slot on a vessel. Section 65(19) ibid 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. The appeal is allowed.
Issues Involved:
1. Taxability of the mark-up earned by the appellants. 2. Classification of services provided by the appellants. 3. Applicability of service tax exemption for transportation of goods by sea. 4. Invocation of extended time limit for issuing the show cause notice. 5. Imposition of penalties under Section 78 of the Finance Act, 1994. Issue-wise Detailed Analysis: 1. Taxability of the Mark-up Earned by the Appellants: The appellants argued that the mark-up earned is their profit margin from trading space booked with shipping lines/airlines and does not constitute a service. The Tribunal observed that the profit and loss account indicated instances of losses, supporting the appellants' claim that they were engaged in trading space rather than providing a service. The Tribunal referenced several case laws, including *Greenwich Meridian Logistics (India) Pvt. Ltd. v. Commissioner* and *Commissioner of Service Tax, New Delhi v. Karam Freight Movers*, which concluded that profits from trading space do not attract service tax as they are not considered a service under the Finance Act, 1994. 2. Classification of Services Provided by the Appellants: The department contended that the mark-up should be taxed under "Support Services of Business or Commerce" as defined in Section 65(104c) of the Finance Act, 1994. However, the Tribunal found that the appellants were not providing support services but were involved in trading space. The Tribunal emphasized that the service tax law taxes services, not profits, and the appellants' activities did not fit the definition of support services. The Tribunal cited the *Greenwich Meridian Logistics* case, which held that trading space is a principal-to-principal transaction and not a service. 3. Applicability of Service Tax Exemption for Transportation of Goods by Sea: The appellants argued that they were responsible for transporting goods to foreign destinations, a service exempt from service tax. The Tribunal agreed, noting that transportation of goods by sea to a foreign destination was never taxable under service tax law, both before and after 01.07.2012. The Tribunal referenced the *Greenwich Meridian Logistics* case, which clarified that such activities are not taxable as they are principal-to-principal transactions. 4. Invocation of Extended Time Limit for Issuing the Show Cause Notice: The appellants contended that the demand was time-barred as the show cause notice was issued beyond the normal 18-month limit. The Tribunal agreed, noting that the matter involved interpretation of law, which does not justify invoking the extended time limit. The Tribunal found that the show cause notice issued on 09.12.2014 was beyond the permissible period for the half-year ending March 2013. 5. Imposition of Penalties under Section 78 of the Finance Act, 1994: The appellants argued that penalties could not be imposed as the demand was time-barred and the matter involved interpretation of law. The Tribunal agreed, referencing the *Greenwich Meridian Logistics* case, which held that penalties could not be imposed when the demand itself was not sustainable. The Tribunal set aside the penalties imposed under Section 78 of the Finance Act, 1994. Conclusion: The appeal was allowed with consequential relief. The impugned order was set aside, and the Tribunal found that the appellants were engaged in trading space, not providing a taxable service. The Tribunal's decision was supported by precedent judgments, including *Greenwich Meridian Logistics* and *Karam Freight Movers*, which clarified that trading space does not attract service tax and that the extended time limit for issuing the show cause notice was not applicable.
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