2023 (7) TMI 546 - AT - Service Tax

Levy of Service Tax - Mark Up/Differential Ocean Freight - Container Detention Charges - Toll Tax, Brokerage - Forklift Charges - Fumigation Charges - Sundry Charges - 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. The demand of service tax on mark up on ocean freight, container detention charges and toll taxes is set aside - The plea of the appellant that service tax to the extent not disputed and paid with interest and covered by section 73(3) of the Finance Act is accepted and the demand raised in the show cause notice to that extent is set aside. The provisions of section 73(4) of the Finance Act are not applicable because intention of the appellant is not established - penalty under section 78 of the Finance Act is set aside as suppression is not proved - penalty under sections 77(1) and 77(2) of the Finance Act are set aside by invoking the provision of section 80 of the Finance Act - plea of the appellant for refund of the service tax already paid is rejected. Appeal allowed in part.

Summary

Issues Involved:
1. Demand of service tax on various charges.
2. Imposition of penalty under Section 78(1) of the Finance Act, 1994.
3. Non-imposition of penalty under Section 76 of the Finance Act, 1994.
4. Whether the Tribunal should modify the order under Section 86(7) of the Finance Act, 1994.

Summary:

Issue 1: Demand of Service Tax on Various Charges
The appellant, engaged in customs clearance, transportation, and freight forwarding, contested the demand of service tax on Mark Up/Differential Ocean Freight, Container Detention Charges, Toll Tax, Brokerage, Forklift Charges, Fumigation Charges, and Sundry Charges. The Tribunal referred to its previous order dated 04.02.2022, which partially allowed the appellant's appeal by setting aside the demand of service tax on mark up on ocean freight, container detention charges, and toll taxes. The Tribunal reiterated that the appellant operates on a principal-to-principal basis with clients, and any profit or loss from selling cargo space is not subject to service tax.

Issue 2: Imposition of Penalty under Section 78(1)
The Tribunal set aside the penalty under Section 78(1) of the Finance Act, 1994, as suppression was not proved. The appellant's intention was not established, and the omissions did not warrant the imposition of this penalty.

Issue 3: Non-imposition of Penalty under Section 76
The Tribunal upheld the decision not to impose a penalty under Section 76 of the Finance Act, 1994, as the appellant had already paid the service tax along with interest, and the provisions of Section 73(3) of the Finance Act were applicable.

Issue 4: Modification of Order under Section 86(7)
The Tribunal found no grounds to modify the order under Section 86(7) of the Finance Act, 1994. The appeals filed by the department were dismissed, and the Tribunal upheld its previous decision, which partly allowed the appellant's appeal and set aside the demand of service tax on certain charges.

Conclusion:
Service Tax Appeal No. 52405 of 2022 filed by the appellant was partly allowed, setting aside the demand of service tax on specific charges and penalties. The appeals filed by the department (Service Tax Appeal No. 51621 of 2022 and Service Tax Appeal No. 51622 of 2022) were dismissed. The Tribunal's order was pronounced on 12.07.2023.