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TMI Blog2016 (8) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... on involved is one of close interpretation of the legal provisions and there is nothing on record to show that there is a positive act of suppression or wilful mis-statement of any relevant facts by BTPL to enable the department to sustain the demand for longer period. We do not find any justifiable reason to interfere with the findings of the lower authority on the question of time bar. The tax liability, if any, is upheld only where the conditions are not fulfilled. - Decided in substantially in favor of assessee. - Service Tax Appeal No. 104/2010, 55430/2013, 54736/2014, 188/2010 & ST/C.O. 70/2010 - Final Order No. 52656-52659/2016 - Dated:- 28-7-2016 - Justice (Dr.) Satish Chandra, President and Mr. B. Ravichandran, Member (Technical) Rep. by Sh. J. M. Sharma, Advocate for the appellant Rep. By Sh. Yogesh Agarwal, DR for the Respondent ORDER There are four appeals, three by M/s Birds Travel Private Limited (BTPL) and one by Department involving the same issue of service tax liability on BTPL in respect of commissions received by them from various foreign airlines in their capacity as General Sales Agents (GSA). 2. The brief facts of the case are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales of transportation for passengers. (b) Sales promotion including the development of specific markets for transportation by personal and regular contact with actual and prospective passengers and with commercial houses and Sales Agents. (c) Undertaking of special publicity when so requested by PARENT AIRLINES. (d) Prominent display of PARENT AIRLINES advertising publicity and display material in windows and interiors of all the GENERAL SALES AGENTS offices in the area and such advertising publicity and display material are to be based on PARENT AIRLINES standards. (e) To notify the GENERAL SALES AGENTS reservations and ticketing staff and to Sales Agents in the area, instructions, special advices and sales points sent to the GENERAL SALES A GENT by PARENT AIRLINES. (v) Hiring adequate and suitably qualified personnel for various positions in the areas of reservations, ticketing, sales, accounts, administration and so forth. Unless otherwise stated, PARENT AIRLINES approval must be obtained prior to hiring of staff The number of staff hired aimed at providing efficient customer service and coverage of sales territory must be agreed upon by PARENT AIRL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax @ 0.5% (now 1.2%) of the base fair in the case of international tickets. The department cannot subject the same transaction to another service tax under the category of BAS. We find that this particular argument of BTPL is misleading and erroneous. The air travel agents as well as BTPL when issuing tickets for international travel are discharging service tax as air travel agents as per the rate mentioned above. However, in addition to the commnission on tickets sold by the air travel agents. BTPL by their status as GSA also received over riding commission target incentives in respect of airlines ticket sold by agents in the earmarked territory on flown basis. We find that this commission / incentives is directly attributable to the performance of BTPL as GSA for a particular airlines. In other words selling tickets and getting commission is an activity relating to air travel agency which is simply only on sale of tickets whereas as GSA BTPL are involved tin various activities which are not simply sale of tickets. These activities are generally aimed at promotion of business of foreign airlines. We find the original authority has examined this issue in detail and made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of close interpretation of the legal provisions and there is nothing on record to show that there is a positive act of suppression or wilful mis-statement of any relevant facts by BTPL to enable the department to sustain the demand for longer period. We do not find any justifiable reason to interfere with the findings of the lower authority on the question of time bar. 8. In respect of two appeals by BTPL against the impugned orders dated 27.11.2012 and 08.07.2014, BTPL strongly contended that in respect of three foreign airlines, Hann Air, S. N. Brussels and Iceland Air, the services provided as GSA are to be treated as export of services. It is the case of BTPL that these airlines do not have any office in India and as such based on the decision of the Tribunal in Paul Merchants - 2013 (29) STR 257 there is no service tax liability on export of services. We find that in the impugned order dated 27.11.2012 the Id. Commissioner (Appeals) categorically recorded that benefit of services have accrued outside India. However, he held that services have been provided and used in India and cannot said to be fulfilling the condition of service used outside India in terms of B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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