2018 (8) TMI 1108 - AT - Service Tax

Business Auxiliary Services - services related to freight forwarding - the assessee made booking of space for the cargo and thus procured cargo space from the shipping lines at specified agreed rates - whether the service would fall under Business Auxiliary services or otherwise? - Held that - By booking a space for cargo and making available the same to the clients/actual user of space, they charged the mark up on the amount paid to the shipping lines - For booking of cargo space they receive a small incentive over and above the freight charges from the shipping liners. The very same activity has been considered by the Tribunal in the case of Phoenix International Freight Services Pvt. Ltd. 2016 (9) TMI 585 - CESTAT MUMBAI , where it was held that in such activity of booking of cargo spaces, the assessee is not rendering any service either to the shipping line or to the customers and the activity cannot be taxed under Business Auxiliary Services. The demand cannot sustain - appeal dismissed - decided against Revenue.

Summary

Issues:
Taxability of services related to freight forwarding under Business Auxiliary Service and Business Support Services.

Analysis:
The appeals involved a dispute regarding the taxability of services provided by the assessee related to freight forwarding. The Department contended that the activities fell under Business Auxiliary Service until 30/4/2006 and thereafter under Business Support Services. The original authority confirmed the demand under two show cause notices, excluding freight charges and levying tax only on the mark-up value. The Department appealed against the exclusion of freight charges, arguing that the entire amount should be subject to service tax as the activities involved managing logistics and distribution services. The assessee, however, argued that the services did not fall under the mentioned categories, citing relevant case laws.

The Tribunal examined the nature of the activities carried out by the assessee, which involved booking cargo space, procuring cargo from clients, and forwarding the cargo using the space procured. The Tribunal noted that the assessee collected a mark-up on the amount paid to the shipping lines, which was considered as profit from trading and selling of space. The Tribunal referred to previous decisions where similar activities were not considered taxable under Business Auxiliary Services. The Tribunal emphasized that the assessee was not rendering services to the shipping lines or customers but engaging in principal-to-principal transactions.

Referring to case laws such as Greenwich Meridian Logistics India Pvt. Ltd. and Phoenix International Freight Services Pvt. Ltd., the Tribunal concluded that the demand for service tax could not be sustained. The Tribunal set aside the impugned orders confirming the demand, interest, and penalties, thereby allowing the appeals filed by the assessee and dismissing the appeals filed by the department.

In conclusion, the Tribunal ruled in favor of the assessee, holding that the activities related to freight forwarding did not fall under the purview of Business Auxiliary Service or Business Support Services, as argued by the Department. The Tribunal based its decision on the nature of the transactions as principal-to-principal, following precedents where similar activities were not considered taxable under the mentioned services.