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TMI Blog2024 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ercontinental Consultants and Technocrats Pvt. Ltd. [ 2018 (3) TMI 357 - SUPREME COURT] wherein it has been held that prior to 14.05.2015, reimbursable expenses are not includable in the taxable value of services rendered by an assessee. In this case, we find that whole of the period is prior to 14.05.2015. Accordingly, the reimbursable expenses received by the appellant from their clients are not includable in the taxable value of the services provided by them. Therefore, the demand of Rs.98,62,631/- is set aside. Non-payment of Service Tax of Rs.74,56,649/- for commission received from clients during 2006-07 to 2009-10 - Non-payment of Service Tax of Rs.23,85,135/- for commission earned on Sea Freight charges during 2006-07 to 2009-10 - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been set aside, therefore, no penalty is imposable on the appellant. The impugned order is set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Amit Kumar and Shri Aditya Dutta , both Advocates for the Appellant Shri Subrata Debnath , Authorized Representative for the Respondent ORDER ORDER : [ PER SHRI ASHOK JINDAL ] The appellant is in appeal against the impugned order demanding Service Tax of Rs.1,75,03,370/- along with interest; penalty was also imposed under the provisions of the Finance Act, 1994. 2. The facts of the case are that the appellant has been registered as a provider of service under the categories of clearing and forwarding agency servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Counsel appearing on behalf of the appellant submits that the demand of Rs.98,62,631/- is not sustainable as the expenses incurred by the appellant on behalf of their client, were reimbursed to them. Therefore, it is contended that they are not liable to pay Service Tax in terms of the decision of the Hon ble Apex Court in the case of Union of India v. Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (10) G.S.T.L. 401 (S.C.)]. It is his submission that whole of the impugned period is prior to 14.05.2015 and therefore, no Service Tax is payable by the appellant in this case. 4.1. With regard to the issues (B) and (C) hereinabove, it is submission of the Ld. Counsel for the appellant that the amount, in reality, is a disco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the demand of Rs.98,62,631/- is set aside. (B) Non-payment of Service Tax of Rs.74,56,649/- for commission received from clients during 2006-07 to 2009-10: (C) Non-payment of Service Tax of Rs.23,85,135/- for commission earned on Sea Freight charges during 2006-07 to 2009-10: 9. With regard to the Service Tax demands under the category of business auxiliary service of the amounts of Rs.74,56,649/- and Rs.23,85,135/-, we find that the said amounts were collected on account of sale of space purchased by the appellant from shipping lines, which were sold to their clients at a higher value. Therefore, it is observed that the appellant has earned profit on sale of space, which does not constitute a commission received by the appellant. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected by the assessee being an element of profit in the transaction cannot be subject to levy of Service Tax. Similar view was taken by the Tribunal in the case of Commissioner of Service Tax, New Delhi Vs. M/s. Continental Carriers [2017-TIOL-3964-CESTAT-DEL] and in the case of Greenwich Meridian Logistics (I) Pvt. Ltd. vs. Commissioner of Service Tax, Mumbai [2016 (43) STR 215 (Tri. Mumbai)]. In the present case also the Department does not have a case that the appellant has not discharged Service Tax on the agency commission received as a Steamer Agent or CHA. The demand is raised on the mark-up made which is the profit out of the difference in value of ocean freight collected by the shipping line and paid by the exporter / client. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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