TMI Blog2015 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... f service and hence not taxable. During the relevant period services provided by a person situated in India and received by a person situated outside India was not taxable, if the service were to be categorized as Business Auxiliary Service. The brokerage of 2% per shipment received by the Appellants from the shipping lines is merely an incentive given by the shipping lines for choosing their company and is not contractually agreed consideration for any activity performed by the Appellants at the behest of the Shipping Lines. - Extended period cannot be invoked with respect to the period July 2003 to March 2008. - Levy of interest is not sustainable when service tax itself is not payable. - There was no intention on the part of the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission agent. With respect to the activity (business auxiliary service) being treated as export of service , the requirement regarding foreign exchange is mandatory and is not to be relaxed and since the appellant has not complied with the requirement, the service does not quality as export. The fact that the brokerage is paid as a trade practice do not mean that the payment was not made as remuneration for the service provided. The brokerage income is income received in the course of providing service to the shipping lines and is liable to service tax under business auxiliary service. So long as the liability of service tax is on the service recipient, the appellant can treat the income earned as cum tax value. Service tax liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise., Punjab- 2008 (10) S.T.R. 545 (SC.) Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd-2008 (12) S.T.R 401 (SC) Activity performed by the appellants, if anything can only be classified as cargo handling services. The activities of cargo handling in relation to export cargo has not been defined elsewhere or made taxable under the Finance Act, 1994. However, the said activity is not taxable owing to specific exclusion from the taxation as per Section 65(23) of the Act. Reliance has been placed on the following:- Beena Pradeep v. Government of India 2013 (29) S.T.R. 225(Ker.) VBC Exports Ltd v. Commissioner of C. Ex, Visakhapatnam 2008 (10) S.T.R. 613 (Tri-Bang.) Konkan Marine Agencies v. Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived by a person situated outside India was not taxable, if the service were to be categorized as Business Auxiliary Service. The brokerage of 2% per shipment received by the Appellants from the shipping lines is merely an incentive given by the shipping lines for choosing their company and is not contractually agreed consideration for any activity performed by the Appellants at the behest of the Shipping Lines. Reliance is placed on Kerala Publicity Bureau v. Commissioner of Central Excise 2008 (9) STR 101 (Tri-Bang) Extended period cannot be invoked with respect to the period July 2003 to March 2008. Levy of interest is not sustainable when service tax itself is not payable. There was intention on the part of the Appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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