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TMI Blog2022 (2) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... t that can be subjected to service tax on the basis of the information that needs to be provided by the appellant in respect of the breakup of differential income between their financial records and ST-3 returns - Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants are providing service relating to export and import cargo. The Service Tax registration is obtained for Business Support Services, Business Auxiliary Services, Cargo Handling Services & Transport of goods by Road. 2.2 During the course of EA -2000 audits conducted on the records of one of the branch offices of the appellant, by the officer of Service Tax Commissionerate Chennai, it was noticed that they had collected, service charges on account of documentation, de-stuffing. transportation, and issue of delivery order etc, in respect of import cargo and terminal handling charges and documentation charges in respect of export cargo and had paid service tax due thereon. However, during the tally of the financial accounts with the value of taxable services declared in the ST-3 return filed by them during the year 2006- 07 to 2008-09, it was noticed that there was additional income shown in those account, under the bead of operating income', which had not been declared in the ST-3 returns. 2.3 Since the said branch office was registered at Chennai two SCNs with SCN No. 118/2010 dated 07/04/2010 amounting to ₹ 2,44,32,896/- for 2006-07 to 2008-09 (upto Jan,) and SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Service Tax and was paying service tax under the category of Business Auxiliary Service, Business Support Service, Cargo Handling Service and Transport of Goods by Road Service * however by referring to para 17 of the order, it is also undisputed that appellant has throughout the investigation not given the break up differential income shown in their book of accounts even after being asked for, therefore Commissioner has held the entire differential income to be taxable under the category of business support services. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of hearing. 4.2 The appellant is providing services relating to handling of import/ export cargo and were paying service tax under category of Business Auxiliary Service, Business Support Service, Cargo Handling Service and Transport of Goods by Road Service. They received cargo, issued House Bill of Lading. While billing charges to the customers, they were showing the amounts towards freight apart from various other charges being recovered by them. On freight recovered they were not paying any service tax. On scrutiny of the records of appellant it was obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of services rendered by them, on account of which the said differential operating income had been earned during this period, could be determined and classified appropriately to demand service tax vide letters dated 01-04-2011 and dated 15-04-2011 issued by the office of Assistant Commissioner, Div-V of erstwhile Service Tax-II Commissionerate However Assessee did not provide the details sought. On perusal of the Memorandum and Article of Association dated 07-14-2005 of the Assessee's company, it appears that they are engaged in providing certain services such as Shipping Agents, Clearing Agents, Ship Owners, Ship Brokers, Freight Forwarders, Consolidators, Freight Contractor, IATA agents, Non vessel Owning Common Carriers, Logistic Service providers, Multi Modal Transport operators, General Sales Agents, Passenger Sales Agents or Cargo Sales Agents, Carrier by land, Air and water transport haulage Merchants Stevedores, Salvers. All of these services appear to be taxable services being covered under Section 65 of the Finance Act, 1994. Accordingly, the amount of income difference observed between the gross receipts declared in the ST 3 returns and the gross income reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axable entry specifies the legislative intent. 8. The Hon'ble High Court of Gujarat in Sports Club of Gujarat Ltd. v. Union of India [2010 (20) S.T.R. 17 (Guj.)] has observed that - '9 ….. Service Tax was introduced in India vide the Finance Act, 1994. It is legislated by the Parliament under the residuary entry, i.e. Entry 97 of List I of the Seventh Schedule of the Constitution of India. It is an indirect tax and is to be paid on all the services notified by the Union Government for the said purpose. The said tax is on the service and not the service provider.' and, though in the context of dispute relating to 'mandap keeper', the judgment is particularly relevant here as it goes on to observe after drawing attention to Section 68 and Section 65 of Finance Act, 1994 that. 12. A conjoint reading of the above provisions of the law goes to show that the services provided to a client, … … , falls under the category of taxable service' 9. The description of the taxable service in Section 65(105) of Finance Act, 1994 as well as the definition, if any, of the terms therein are the primary determinant for taxation of any service. From the observation of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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