2024 (2) TMI 565 - AT - Service Tax

Classification of services - Business Auxiliary Services (BAS) or not - collecting freight charges for cargo and that the assessee would collect extra charges in excess of the charges paid by them to the air liner / shipper, for which the appellant did not pay Service Tax - Whether the appellant had acted as a commission agent by providing the service of booking space for cargo transportation or not? - HELD THAT - There are no documents containing any of the facts being involved in the case on hand. Here, the appellant is straightaway treated as a commission agent and consequently, Service Tax was demanded from the appellant for the services allegedly rendered under BAS. There is no whisper about any incentive being received from the liners being commission on sales nor is it the case of the Revenue that the appellant has been receiving commission on a regular basis from the airlines / ships, and nor is their any whisper about discounts being received from the airlines / ships. Rather, the entire profit element is being considered as service charges received by the appellant. The Revenue having alleged that the services rendered by the appellant were under BAS, has not bothered to specifically identify the limb provided under various sub-clauses under the definition of BAS. Unless the alleged service is brought under the specific limb provided under the statute, Service Tax cannot be demanded under BAS as such, since BAS is an umbrella under which various services are categorized. The point of reference to Third Member in the case of M/s. New Era Travel Cargo Agencies 2023 (12) TMI 1288 - CESTAT CHENNAI is not at all applicable to the facts of the present case. The demand raised and confirmed under BAS cannot sustain - impugned order set aside - appeal allowed.

Summary

Issues involved:
The only issue for consideration is whether the Revenue is justified in demanding Service Tax under 'Business Auxiliary Service' for specific periods.

Details of the Judgment:
The appellant, a logistics company, was accused of not paying Service Tax on extra charges collected for cargo transportation services. The Revenue claimed the service fell under Business Auxiliary Service due to the appellant acting as a commission agent. The appellant denied the liability, citing a previous order in their favor. The Commissioner confirmed the demands, leading to the appeals.

During the hearing, the appellant's Chartered Accountant referenced a previous order in the appellant's favor, arguing for a similar outcome. The Revenue officials supported the findings in the impugned order. One official mentioned a case with a Difference of Opinion on a similar issue, requesting to await the Third Member's decision.

The Tribunal addressed the reference to the Third Member, highlighting the differences in facts between the cases. The Tribunal noted that the Revenue did not specify the specific limb under the definition of Business Auxiliary Service under which the alleged service fell. Without proper identification, the demand under Business Auxiliary Service could not be upheld. Consequently, the Tribunal set aside the impugned order, allowing the appeals.

Separate Judgment:
No separate judgment was delivered by the judges.