9911796707
TMI Blog2024 (4) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.3.2016 20.6.2017 3,39,92,078 10,000 (under section 77) 39,99,208 (under section 76) ST/50817/2021 2015-16 12.4.2018 7.4.2021 12,22,33,323 10,000 (under section 77) 1,22,23,332 (under section 76) ST/50812/2021 2016-17 7.8.2019 7.4.2021 16,40,73,833 10,000 (under section 77) 1,64,07,383 (under section 76) 2. Since the issue involved in all these appeals is the same, they are being disposed of together. 3. We have heard learned consultants for the appellant and learned authorised representative for the Revenue and perused the records. 4. The appellant was registered with the service tax department for providing taxable services viz., Business auxiliary services as defined in section 65 (19) of the Finance Act, 1994 Finance Act, goods transport agency service as defined in section 65 (50b), storage and warehousing services as defined in section 65 (102) and cargo handling services as per section 65 (25) of the Finance Act. Its primary business was of providing business auxiliary service in the form of promoting the business of the airlines for a commission. 5. During audit, it was found that the amounts which the appellant had received from the airlines [on which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TDS certificates issued by the appellant. Accordingly, demands of service tax were confirmed and consequential penalties were imposed. v) The appellant was incorporated on 23.1.1996, had obtained a PAN and ST registration and then it was amalgamated with M/s. Bax Global India Pvt. Ltd on 1.4.2007 and after amalgamation, it changed its name back to M/s. Schenker (India) Pvt. Ltd. which was the appellant's name before amalgamation. Thereafter, it obtained a new PAN and a new Service Tax Registration. The first two SCNs were issued by the department to the appellant citing its old Service tax registration which therefore, cannot bind on the appellant which has now a new registration. vi) The impugned order is vague and did not properly analyse the activities of the appellant in toto. The allegations are vague and ambiguous. vii) Buying and selling of cargo space on ships or aircrafts is not rendering of any service but is purely trade as decided in: a) Tiger logistics (India) Ltd. versus CST Delhi 2022(63) GSTL 337 (Tri-Del) b) Bhatia Shipping Pvt. Ltd. versus CST Mumbai 2022(1) TMI1175- CESTAT Mumbai viii) The department failed to indicate which clause of Business Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a payment made to the appellant. From this amount, the airlines had also deducted tax (TDS). 11. The Commissioner does not dispute that this was a transaction of sale and purchase of cargo space by the appellant and has explicitly recorded so. In paragraph 50 of the first impugned order dated 1.3.2016, the Commissioner recorded as follows: Now, the first issue before me to be decided is whether Service Tax could be demanded and recovered from the noticee for the sale and purchase of cargo space. 12. The Commissioner recorded in paragraph 53.1 of the same order that the Tribunal had decided in Commissioner of Service Tax, Mumbai versus Greenwich Meridian Logistics (I) Pvt. Ltd. 2013 (32) S.T.R. 753 (Tri-Mumbai) that purchase and sale of cargo space is not service and service tax is not payable on this activity. Having so recorded, the Commissioner came to a rather unusual conclusion that the airlines can sell the same cargo space to both the appellant and to others and since the appellant is not the permanent owner of the cargo space, service tax is payable. The relevant portion of the order is reproduced below: ".....I would like to mention here that, in the trading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing on record to support this imagination of the Commissioner. When a bus operator or railway or an airline sells a seat on a journey on a date to one person, it is unthinkable that they would sell the same seat to someone else also. Similarly, if a movie theatre sells a seat for a screening on a date to one person, it will not also sell the same seat to someone else. Of course, when one buys a railway ticket or a movie seat, he does not become the permanent owner of that seat; the property in it will continue to be with the railways or the theatre. This does not mean that a seat has not been sold. 17. Similarly, in case of cargo space on ships or airlines, either the shipping line or airline sells the cargo space to the exporters (either directly or through an agent) or it sells it someone such as the appellant in bulk so that they can, in turn, sell it to exporters. In both cases, the sale of cargo space will be only for that voyage or flight. 18. If the cargo space is sold by the airlines to the exporter and the appellant acts as commission agent, then the privity of contract is between the airlines and the exporter and the appellant will be only an agent and gets its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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