2017 (8) TMI 1285 - AT - Service Tax

Levy of service tax - various CHA services - Various Business Auxiliary Services - Break Bulk fee as CHA service - Freight Rebate as BAS - Airline Commission as BAS - Airline Incentive as BAS - CCX fee as BAS - Held that - the Mumbai Bench in the case of DHL Logistics Private Limited Versus Commissioner of Central Excise, Mumbai-II 2017 (8) TMI 600 - CESTAT MUMBAI , has held that freight rebate, airline commission and airline incentive are not liable to levy of service tax and has held the issue in favour of assessee. Following the same, we hold that the demand of service tax in respect of above three services is not sustainable and requires to be set aside. CCX fee as BAS - Held that - The Tribunal in the case of DHL Logistics Private Limited held that demand under CCX fee as BAS is sustainable. Following the same, we hold that the demand in the appeal has to be sustained. Break Bulk fee as CHA service - whether the said fee would fall under BAS? - Held that - the demand of service tax on the charges like break bulk fee, agency fee, unallocated income, system currency assessment factor and expenses reimbursement are not subject to levy of service tax under BAS prior to 1.5.2006. The demand on these charges is required to be set aside. Penalty - Held that - several amendments were brought into the definition of Business Auxiliary Service - Further, a new entry Business Support Service was introduced from 1.5.2006. In view thereof, we hold that imposition of penalty is unwarranted. Appeal allowed - decided partly in favor of appellant.

Summary

Issues involved:
- Appellant not discharging service tax liability on charges falling under CHA service and BAS.
- Confirmation of duty demands, interest, and penalties by adjudicating authority.
- Dispute over charges like Break Bulk fee, Agency Fee, Unallocated Income, System Currency Adjustment Factor, and Expenses Reimbursement.
- Interpretation of whether services fall under BAS or CHA services.
- Appellant's argument of discharging service tax under Business Support Service from a specific date.
- Imposition of penalties and confusion over tax liability.

Analysis:

1. Confirmation of Duty Demands and Penalties:
The appellant, a Custom House Agent registered under CHA and BAS categories, faced duty demands and penalties after the department alleged non-payment of service tax on various charges. Show cause notices were issued, and upon adjudication, duty demands were confirmed along with interest and penalties.

2. Dispute Over Various Charges:
The appellant contested charges like Break Bulk fee, Agency Fee, Unallocated Income, System Currency Adjustment Factor, and Expenses Reimbursement. The appellant argued that these charges were not liable for service tax under BAS prior to a specific date as they were discharging tax under Business Support Service from that date.

3. Interpretation of Service Tax Liability:
The appellant's counsel argued that the definition of Business Auxiliary Service did not cover services provided directly to the client during the relevant period. The counsel contended that the charges collected did not involve three parties as required for services rendered on behalf of the client, hence not falling under BAS.

4. Judgment on Charges:
The Tribunal analyzed similar cases and held that charges like Freight Rebate, Airline Commission, and Airline Incentive were not liable for service tax under BAS, setting aside the demands. However, the Tribunal upheld the demand on CCX fee under BAS. The demand on Break Bulk fee and other charges was set aside as the appellant had been paying service tax under Business Support Service from a specific date.

5. Penalties Imposition:
The Tribunal considered the interpretational nature of the issue and the changes in the definition of Business Auxiliary Service. Consequently, penalties were set aside as the appellant had been discharging service tax and the imposition of penalties was deemed unwarranted.

In conclusion, the Tribunal set aside certain demands while confirming others based on the nature of charges and the appellant's tax compliance history. Penalties were lifted due to the evolving nature of service tax definitions and the appellant's efforts to comply with tax obligations.