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TMI Blog2021 (12) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ory "Business Auxiliary Services", on a reverse charge basis. The said service tax for the relevant period was discharged belatedly only in June 2012 along with interest thereon vide the following three Challans: Challan No. & Date Amount (Rs.) 2420 Dt. 5 June 2012 1,63,83,831.00 2427 Dt. 5 June 2012 3,09,661.00 00255 Dt. 5 July 2012 4,232.00 However, within a period of one year from the date of payment of service tax, the Appellant filed a claim for refund on 20 May 2013 based on the decision of the Tribunal in the case of Inter Ocean Shipping Company - 2013 (30) STR 244. The said refund claim was rejected by the adjudicating authority after following the due process of law vide Order-in-Original dated 15 September 2015 on the following three grounds: (A) Inter Ocean case (supra) does not determine the taxability or exemption in case of ship broker services availed from outside India. (B) Inter Ocean case does not exclude taxability of ship broker services under any other taxable category. (C) The CA Certificate dated 25 March 2015 relied upon to discharge the burden of unjust enrichment could not be said to be a conclusive proof of having not passed on the inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice at the first place by relying upon the following decisions: * M/s Jetlite (India) Ltd. Vs. CCE, New Delhi - 2011 (21) STR 119 (Tri. - Del.) * Sainik Mining & Allied Services Ltd. Vs. Commr. of ST, Delhi - 2019 (28) GSTL 156 (Tri. - Del.) Further, "Business Support Service" was not a residuary category but covered only outsourcing services enumerated in the inclusive part thereof. Moreover, the Ld. Appellate Commissioner has not even identified as to which of the specified activity in the definition of "Business Support Service" stood triggered in this case so as to justify taxability of ship broker services under the said taxable category. C. It is settled that the certificate of an expert cannot be brushed aside unless such opinion is displaced by another expert [M/s. Harinagar Sugar Mills Ltd. Vs. CCE & ST, Patna - 2019 (9) TMI 1378 CESTAT KOL, and Inter Continental (India) Vs. Union of India - 2003 (154) ELT 37 (Guj.)]. Therefore, the Ld. Appellate Commissioner could not have brushed aside the certificate of the Chartered Accountant establishing that the incidence of service tax on a reverse charge basis was borne by the Appellant himself and not passed on to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essentially a broker. Ship brokers are specialist intermediaries for negotiations between ship owner and charterers who use the ship to transport some cargo or between the buyers and sellers of the ship. A ship broker bring together a ship owner who wants employment/fixture for his ship located at a particular Port and ship charterer who requires a particular type of ship at or around a particular Port to transport some cargo. They help in negotiating the terms of the charter and finalization of charter - party agreement and also assist both the parties in compliance of the charter - party terms and full and final settlement of all the dues and claims. The ship broker also acts as an intermediary for bringing together a ship owner who wants to sell his ship and the prospective buyer and assisting in sale of the ship. For providing these services, the ship brokers have to maintain database of ship owners, the class of ships owned by them and their location. It is not the case of the Department that the appellants have agreements with shipping companies etc. for representing them in negotiations. The essential ingredient of a 'Commission agents' service is acting on behalf of a princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharging the burden of correctly classifying and establishing taxability of ship broking services under a particular taxable category by putting the Appellant to notice, the Revenue has on the contrary sought to shift this burden upon the Appellant as the Notice dated 30 October 2014 did not even propose classification of ship broking services under any other taxable category. There is considerable force in the submission of the Appellant that in the absence of any particular classification proposed in the Show-cause Notice, the Ld. Appellate Commissioner could not have alleged that ship broking services were taxable as "Business Support Services". We are inclined to follow the decision of the Tribunal in Sainik Mining case (supra), that classification of services under a taxable category not alleged in the Show-cause Notice cannot be concluded to support the levy of tax as held in para 11,set out below: (11) Now coming to the activities for the period beyond 1-6-2007 till 31-3-2008, it is observed that though the activities of appellant are no doubt the mining activities but it is observed from the impugned Show Cause Notice that the same has not been so alleged. In Show Cau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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