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TMI Blog2018 (8) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of AVR Cargo Agency Pvt. Ltd. [2018 (6) TMI 524 - CESTAT CHENNAI], where it was held that the commission received from the airlines prior to 10.9.2004 cannot be subjected to service tax under Business Auxiliary Service. Appeal allowed - decided in favor of appellant. - ST/668, 676/2008-DB - Final Order No. 21054-21055/2018 - Dated:- 31-7-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Kuriyan Thomas, Advocate For the Appellant Shri Madhupsharan, Asst. Commissioner(AR) For the Respondent ORDER Per: S.S GARG The appellants have filed these two appeals against the common impugned order dt. 06-08-2008/16-08-2008 passed by the Commissioner(Appeals) whereby t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) vide the impugned order dismissed the same. Hence the present appeals. 3. Heard both sides and perused records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant is admittedly engaged in providing taxable services under the category of Customs House Agent service and during the course of his work, the appellant sometimes had to identify vessels for carrying cargo belonging to shippers to various destinations. The vessel suitable to the shipper is identified based on the requirements of the shipper; but the appellant never acts, at any point of time, as an agent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On careful consideration of the submissions of both the parties and perusal of the material on record and the decisions cited supra, we find that the services rendered by the appellant do not fall in the definition of BAS as it existed during the relevant time. We also find that the appellant is only getting an incentive for booking the space in the ship as per the requirements of the shipper and he is getting only brokerage from the steamer line or steamer agent which is nothing but a business incentive / commission. Further we find that this issue has been considered by the Tribunal in the case of AVR Cargo Agency Pvt. Ltd. (supra) wherein the Tribunal after considering the earlier judgments passed by the Tribunal on the same issue ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial force in the argument of Ld Counsel, the freight rebate is a revenue stream generated out of trading of the space in the airline incentives. Unless the space is booked by the appellant specifically for a client the components of the Business Auxiliary Service do not come into play. In the instant case, there is no such allegation and the appellants are booking the space for their own trading activities. In these circumstances demand of service tax under BAS cannot be sustained and the same is set aside. 4.3. The next issue is relates to the income under the head of airline commission and airline incentive sought to be text under BAS. It is seen that the said income is generated during the course of booking of bulk cargo b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the head of BAS for the Revenue generated as airline/airline incentive is set aside. 6. Similar ratio has also been followed in the case of Karam Freight Movers (supra). The observations of the Tribunal are as below: 11. On the second issue regarding the service tax liability of the respondent under BA5, we find that the impugned order examined the issue in detail. It was recorded that the income earned by the respondent, to be considered as taxable under any service category, should be shown to be in lieu of provision of a particular service. Mere safe and purchase of cargo space and earning profit in the process is not a taxable activity under Finance Act, 1994. We are in agreement with the findings recorded by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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