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2013 (9) TMI 105 - Commissioner - Service TaxBusiness Auxiliary Service u/s 65 (105) (zzb) - Air Travel Agent Service - the appellant used central "Computer Reservation Systems" (CRS) software - Department revealed that the appellants as Air travel agents have been receiving incentive/commission from CRS developers and it appeared that this incentive/commission received was taxable with effect from 01.07.2003 under the category of "Business Auxiliary Service" - Held that:- There was no reason to demand Service Tax on the incentives received by the appellant from CRS developers under the category of "Business Auxiliary Service" - The amount collected as incentive was in no way connected to the service rendered by the appellants to their clients in providing the service of booking air tickets nor it was billed to the clients - The appellant were not liable to pay service tax on the amount collected as incentives - As the demand itself was not sustainable, the question of imposing penalty does not arise - Relying upon COMMISSIONER OF C. EX., AURANGABAD Vs BALAKRISHNA INDUSTRIES [2006 (8) TMI 182 - SUPREME COURT OF INDIA] and RAJASTHAN SPINNING & WEAVING MILLS LTD. VsCOMMR. OF C. EX., JAIPUR-II-[2004 (8) TMI 578 - CESTAT, NEW DELHI]. Department had not made any effort to establish that there was Service provider/ receiver relationship between the appellant and CRS developer - When such relationship was not there, there was no service involved between them - Department had also failed to prove that the amount received by the appellant was a consideration for the service provided to the CRS developers - The amount was given by the CRS developer to the appellant as a loyalty incentive for using their software for booking tickets - classifying the activity of the appellant under the category of "Business Auxiliary Service" was untenable – Following Kerala Publicity Bureau Vs. CCE [2007 (5) TMI 151 - CESTAT, BANGALORE ] – order set aside - Decided in favour of Assessee.
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