2007 (10) TMI 140 - AT - Service Tax

Clearing and Forwarding Agent - Various receipts pointed out by the dept like loading and unloading charges, freight charges, telephone charges, etc. cannot be added for payment of remuneration or commission - Service tax has to be charged only on the gross commission received

Summary

Issues:
- Inclusion of handling charges and secondary freight in taxable value for Service Tax calculation.
- Entitlement of deductions claimed by the assessees.
- Interpretation of the definition of Clearing and Forwarding Agent under Section 65(25) of the Finance Act.
- Correct calculation of taxable value for services provided by Clearing and Forwarding Agents.

Analysis:
1. Inclusion of handling charges and secondary freight: The appeals raised a common question regarding the inclusion of handling charges and secondary freight in the taxable value for Service Tax calculation. The Commissioner (Appeals) dismissed the assessees' prayer for non-inclusion of these charges, stating that they are subjected to Service Tax. However, the learned Chartered Accountant argued that these elements are not includible based on previous judgments. The Chartered Accountant relied on various rulings, including Bhagyanagar Services v. CCE, E.V. Mathai & Co. v. CCE, and others, to support the contention that the charges in question should not be added to the total services for tax calculation.

2. Entitlement of deductions: The assessees claimed deductions based on the argument that the total value of taxable services already includes the elements they are seeking to deduct. The assessees, acting as Clearing and Forwarding Agents, received reimbursement from their Principal. The learned JDR contended that as per Section 65(25) of the Finance Act, the value of taxable service provided by a C & F Agent should be deemed as the gross amount of remuneration or commission paid to the agent by the client. The JDR argued that the impugned orders were correct, and the judgments cited by the assessees were rightly distinguished by the Commissioner.

3. Interpretation of Clearing and Forwarding Agent definition: The value of taxable services provided by Clearing and Forwarding Agents was a key point of contention. The learned Chartered Accountant referred to Rule 6(8) of the Service Tax Rules to define the value of taxable service in relation to C & F Agents. The Chartered Accountant argued that various receipts pointed out by the department should not be added for payment of remuneration or commission. The Chartered Accountant maintained that the calculation by the department, including these charges, was incorrect and should be deducted. It was emphasized that Service tax should only be charged on the gross commission received.

4. Correct calculation of taxable value: The Tribunal carefully considered the submissions and referred to previous judgments involving similar issues. It was concluded that Service tax should be charged only on the gross commission received, and the elements being taxed were not correct based on the cited judgments. The impugned orders were deemed not legal and proper. Following the ratio of the cited judgments, the Tribunal set aside the impugned orders and allowed the appeals with consequential relief, if any.