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TMI Blog2024 (3) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... in the show cause notice is ill conceived. The relation between the appellant and the co-operators appears to be one of the principal-to-principal basis. If at all the appellants are presumed to be acting on behalf of somebody else for a commission, it is their customers/clients for whom they are buying tickets from other GSA/IATA operators. However, this is not the allegation in the show cause notice. Therefore, there are no principal and agent relationship between the other GSA/IATA operators and the appellants. Tribunal had an occasion to deliberate on the very same issue wherein Tribunal came to the conclusion that purchase and sale tickets for a commission between two agents operating under GSA/IATA does not amount to rendering any service exigible to service tax. Tribunal in the case of C.S.T., SERVICE TAX- AHMEDABAD VERSUS M/S OM AIR TRAVELS PVT. LTD. [ 2019 (6) TMI 1022 - CESTAT AHMEDABAD] held that In the fact that the appellant is purchasing the ticket on discounted price and selling the same at higher price to the customer, the difference, in our view, is a trade margin during the process of sale and purchase of the tickets. Therefore, we do agree with the contention gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets from other GSA/IATA agents and sale to their customers in normal course of trade; they are not agents of other GSA/IATA agents; the other GSA/IATA agents pay service tax on their commission and a part of the commission to the appellant; the sale and purchase of goods/services are not chargeable to service tax. He submits that the issue is no longer res integra and decided by the Tribunal in the following cases: Om Air Travels Pvt. Ltd. 2019 (25) GSTL 460 (T) Trade Wings Ltd. Vs. Commissioner of Central Excise and Service Tax, 2017 (52) STR 149 (T) Akbar Travels of India Pvt. Ltd. Vs. CCE ST 2019 (22) GSTL 427 (T) Kafila Hospitality Travels Pvt. Ltd. Vs. ST 2021 (47) GSTL 140 (Tri.-LB). 3. Ld. Counsel further submits that the adjudicating authority erred in demanding service tax under two different categories i.e. Air Travel Agents Services and Business Auxiliary Services ; specific sub-heading under business auxiliary services has not been spelt out either in the show cause notice or in the impugned order. He submits moreover, that the show cause notice is time barred; the time limit prescribed for issue of show cause notice during the period was one year i.e. from date on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C Ltd. 2014 (36) STR 481 Delhi held that in examining a show cause notice, the object and purpose to inform the recipient of the allegations are to be taken care of; the same has been done in the show cause notice. They also submit that revenue neutrality is not a criteria to decide the taxability; the argument that the appellant need not pay service tax under business auxiliary service as the co-GSA/IATA agent has paid service tax under Air Travel Agent Service is not acceptable in view of the judgment in the case of Northern Operating System pvt. Ltd. 2022 (61) GSTL 129 (S.C.). 6. Heard both sides and perused the record of case. 7. On perusal of records, it is seen that the appellant are IATA approved ticketing agents; they booked tickets directly from the airlines are co-GSA/IATA operators. In cases where they purchased tickets from co-operators they earned some commission; Revenue alleged that this commission earned is towards the business auxiliary service rendered by the appellants to the co-providers; the revenue is on the point that the appellants are working as commission agents for their co-operators. On going through the explanation given under Section 65(19) commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 5. Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law. He further submitted that the impugned order is contrary to binding judicial pronouncements. He further submitted that the appellant is acting as an air-travel agent and when the customer comes for booking of passage by air, they purchase the tickets from the airlines and given to the customers and on the agency charges they discharged service tax liability under the category of air travel agency services . In respect of smaller airlines, sometime they purchase the tickets from the GSA of the concerned airlines but issue tickets in the name of traveler and hands over the tickets to the appellant for further handing over to the airline travelers. On the entire commission, the GSA discharges service tax liability and part of the commission is given to the appellant. The part of the commission so received is given to the travelers by way of reduction of the price of the tickets. He further submitted that the department seeks to levy service tax on the commission given to them by the GSA (on which service tax liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification dated 26-6-1997 restricts the tax to the commission alone is repugnant to the scheme of the tax is obviously incorrect for the reasons given by us. The basis of the argument that the commission received from the airlines by the air travel agent is taken a measure for imposing a levy on a different service rendered to the customer by the agent is itself incorrect. We, therefore, reject the argument that the impugned provision of Section 67(k) is repugnant to the general scheme of the Act and, therefore, it should fail or that there is anything repugnant in that provisions and the definition clause as also Section 67(k) which is a charging provision. 5.4 In our considered view, the question before us is also identical. The activity undertaken by respondent herein, who is a sub-agent of the IATA agent comes under Air Travel Agents Services or Business Auxiliary Services . The ratio of the decision of the Hon ble High Court of Madras in the case of Airlines Agents Association (supra) would squarely apply to the facts of the present case. If the services rendered by the IATA agent is Air Travel Agents Services , the services rendered by a sub-agent is also the same and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in booking of passage for travel by air which is squarely covered by the definition of air travel agency service as defined under Section 65(105). As per the said definition of Air Travel Agent means any person engaged in providing any service connected with the booking of passage for travel by air and the taxable service means any service provided or to be provided to any person by an air travel agent in relation to the booking of passage for travel by air . 9. In view of the statutory definition, any activity in relation to booking of passage by air travel agent would be covered under air travel agency services . Whether the ticket is bought directly from the airline or through the GSA the same would not make any difference. 10. Further, we find that this issue is squarely covered in favour of the appellant by the Division Bench decision in the case of Zuari Travel Corporation (supra). 11. By following the ratio of the above said decision we are of the considered view that the impugned order classifying the service under business auxiliary service is not sustainable in law and therefore we set aside the impugned order and allow the appeals of the appellant with consequential rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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