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TMI Blog2018 (6) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... and realizing payments etc. it was observed that the respondent was paying service tax only on the commission and was not paying service tax on the additional amount received as incentives based on the volume of transaction for the activity of forwarding cargo through the airlines. Show cause notice was issued proposing to demand service tax along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and penalties. In appeal, Commissioner (Appeals) set aside the demand, interest and the penalties. Hence, department is now before the Tribunal. 2. On behalf of the appellant, Id. AR Shri K. Veerabhadra Reddy reiterated the grounds of appeal. 3. The Id. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent. The Tribunal has held the issue in favour of the respondent. The relevant portion of the decision in the case of M/s. Continental Carriers (supra) is reproduced as under:- "5. We have heard both sides and perused the material available on record. We note that the tax liability on similar activities under the category of 'Business Auxiliary Service' has already come up for consideration before the Tribunal in the above mentioned cases and the Tribunal in the case of DHL Logistics (P) Ltd. (supra) has observed that : "4.2. Demand has been made on service tax under the head of Business Auxiliary Service for the revenue earned as freight rebate. Ld. Counsel has argued that the income is generated as a result of appellants b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission/incentive. The appellants are not buying and selling space on the airline on behalf of their client but on their own behalf. To consider the activity of buying and selling the taxable activity under the head of BAS, the same should be done on behalf of the client. Thus, if the appellants were selling the space on carrier from the airline directly to the exporters without themselves purchasing the space then it could have been considered as an activity involving promotion of sales. In the instant case the appellant are directly buying themselves and thereafter selling the same to the exporters. In this activity they are receiving incentive and commission based on the total space purchase by them from the airline. This activities ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of shippers, contract for space or slots in vessels in anticipation of demand and as a distinct business activity. It is a transaction between principal to principal and the freight charges or consideration for space procured from shipping-lines. The surplus earned by the respondent arising out of purchase and sale of space and not by acting for client who has space or not on a vessel. It cannot be considered that the respondents are engaged in promoting or marketing the services of any "client"." 7. As the issue has already been decided in favour of the assessee-Respondents in the above mentioned orders of the Tribunal, we find no merit in the present appeal filed by the Revenue and the same is dismissed." 6. Following the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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