2019 (2) TMI 678 - AT - Service Tax

Classification of services - IATA agent - Business Auxiliary Services or not - appellant has countered the allegations in the show cause notice stating that they are engaged not only as general sales agent but also receive income in the form of trading of cargo space - Held that - Malaysian Airlines and the appellant have entered into an agreement whereby appellant is appointed as a General Sales Agent of Malaysian Airlines. Clause 9(1) of the said agreement is crucial for analyzing the issue under consideration - As per clause 9, it is seen that the Malaysian Airlines and the appellant has some arrangement with regard to the rates of the cargo slots which can be sold by the appellant. For slots, for which there is specific rate arrangement between the parties, the appellant is not entitled to any commission. Thus, the appellant purchases the cargo slots and thereafter sells the same to customer / exporters. The difference between sale price and the purchase price of the cargo slot is sought to be brought within the ambit of commission by the department. In such transaction, it is specifically stated in clause 9 that the appellant is not entitled to commission. In fact, for transactions as a General Sales Agent, the appellant is entitled to commission as per IATA regulations. In other transaction of sale of cargo space of specific agreed rates, it is not specified that appellant is eligible for any consideration. Only when the appellant is acting or selling the cargo space on behalf of Malaysian Airlines, he acts as general sales agent and receives commission. At the cost of repetition, it is stated that the appellant has discharged service tax on such commission received by them and the demand is confined to the difference between sale price and purchase price of cargo slot only. The transaction sought to be brought within the net of service tax levy in the present proceedings does not fall under BAS - demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
Interpretation of General Sales Agency Agreement for cargo transportation services and liability to pay service tax under Business Auxiliary Services (BAS).

Analysis:
The appellants acted as General Sales Agents for Malaysian Airlines in South India for cargo transportation and other services, registered with the Service Tax Department. A show cause notice was issued for non-payment of appropriate service tax on their income, leading to a demand of &8377; 1,50,89,993/- for a specific period. The appellants contended that they had discharged service tax on commission received as General Sales Agents, not on the profit from trading cargo space. They argued that the difference between purchase and sale price of cargo space was not subject to service tax as it was a separate transaction where they acted as independent buyers. The appellant's liability to pay service tax hinged on the interpretation of the General Sales Agency Agreement and the nature of income received.

The appellant's representative argued that the appellant's profit from selling cargo space was not commission and should not be subject to service tax. They highlighted that the appellant took the risk of profit or loss in such transactions, acting as an independent buyer from Malaysian Airlines. The appellant's position was supported by a previous Tribunal decision involving a similar issue, emphasizing that income from the sale of cargo space was not subject to service tax. The key contention was whether the profit from trading cargo space fell under the definition of commission as per the General Sales Agency Agreement.

The respondent contended that the appellant, as per the agreement clauses, was acting as a General Sales Agent and receiving income in the form of commission. They argued that the transaction of trading cargo space was covered under the agreement terms, making it liable for service tax under BAS. The respondent highlighted specific clauses in the agreement indicating that the appellant's income was akin to commission received as a General Sales Agent. The core issue revolved around the interpretation of the agreement clauses and whether the profit from trading cargo space could be considered commission under the agreement terms.

After hearing both sides, the Tribunal analyzed the agreement clauses, particularly clause 9, which addressed the commission entitlement of the General Sales Agent. It was observed that for specific cargo slots with rate arrangements, the appellant was not entitled to commission, indicating a distinct transaction where they acted as independent buyers. The Tribunal relied on precedents to conclude that the profit from the sale of cargo space, not falling under the definition of commission, was not subject to service tax under BAS. The impugned order demanding service tax was set aside, and the appeals were allowed. The decision rested on the interpretation of the agreement terms and the nature of income received by the appellant.