2023 (7) TMI 480 - AT - Service Tax

Levy of Service Tax - support services of business or commerce - difference between the amount paid by the appellant to the Shipping Lines/Airlines and the amount recovered by the appellant from the customers (exporter/importers) called the mark-up for services provided by the appellant to the customers - negative list services or not - HELD THAT - In MARINETRANS INDIA PVT. LTD. VERSUS CST, HYDERABAD - ST 2019 (4) TMI 534 - CESTAT HYDERABAD , the Division Bench held after considering the Circular dated 12.08.2016 issued by the Central Board of Excise and Customs that buying and selling space on ships does not amount to rendering a service and any profit or income earned through such transactions would not be leviable to service tax. It follows from the aforesaid decision of the Tribunal that when the appellant merely trades in space on ships, it would not be providing any service and so no service tax can levied upon the appellant. It has, therefore, to be held that the Commissioner was not justified in confirming the demand. The impugned order passed by the Commissioner, therefore, cannot be sustained and is set aside - The appeal is, accordingly, allowed.

Summary

Issues involved:
The issues involved in the judgment include the confirmation of demand of service tax with interest and penalty by the Commissioner CGST and Central Excise, Jaipur, related to the collection and retention of margin amount on ocean freight by the appellant, who is engaged in providing various services including business auxiliary services, clearing and forwarding agent services, storage and warehousing services, and transportation of goods by road, rail, and sea.

Allegations and Explanation:
A show cause notice was issued to the appellant, alleging that they collected an amount of Ocean Freight from exporters, retained a margin amount, and were liable to pay service tax on the margin under Business Auxiliary Service. The appellant explained that they were not covered under the category of intermediary as they acted as a principal while providing transportation services, and hence should not be liable to service tax on the margin of ocean freight.

Confirmation of Demand:
The Commissioner confirmed the demand, stating that the margin amount collected by the appellant on ocean freight was taxable under Business Auxiliary Services. The Commissioner held that the difference between the amount of ocean freight collected and paid by the appellant constituted the margin, which was liable to service tax.

Arguments and Decisions:
The appellant relied on Tribunal decisions to argue that they were only trading in space and not providing any service. The department supported the impugned order. The Tribunal considered that the appellant provided cargo space to customers, paid charges for space booking to Shipping Lines/Airlines, and sold the space to exporters/importers at a higher amount, known as the 'mark-up'.

Legal Interpretations:
The department viewed the 'mark-up' as a service provided by the appellant, liable to service tax under the category of 'support services of business or commerce'. Various Division Benches of the Tribunal had previously considered similar cases and held that trading in space on ships did not amount to providing a service, and any profit earned through such transactions was not subject to service tax.

Conclusion:
In line with previous Tribunal decisions, the Division Bench held that when the appellant traded in space on ships, they were not providing a service and thus not liable to service tax. Consequently, the Commissioner's order confirming the demand was set aside, and the appeal was allowed.