TMI Blog2017 (11) TMI 1574X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of the appellant as a custom house agent is to provide services to importers/exporters and the disputed activity was only a facility arranged by them to their clients. The appellant has no obligation to arrange transport of cargo through a particular shipping liner. Therefore, the amount received cannot fall within the category of commission so as to be subjected to levy of service tax - demand under Business Auxiliary Services set aside. The learned counsel for appellant has also put forward the grievance that the Commissioner has not taken note of the amounts paid by the appellant - That appellant would be able to establish with documents that entire liability has been discharged before the issuance of show-cause notice - matter is remanded for such re-examination. Penalty u/s 76 and 78 - Held that: - the appellant has discharged substantial portion of the demand even prior to issuance of show-cause notice - though it is alleged that appellant has suppressed facts with intent to evade payment of tax, there is no specific evidence to prove the same - penalties set aside. Appeal allowed in part and part matter on remand. - ST/00259/2007 - Final Order No. 41960/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the service tax for various services for the period 01.10.2001 to 31.03.2006; (b) Confirmed demand of ₹ 2,82,326/- being the service tax credit wrongly taken and availed by them for the period 16.08.2002 to 31.03.2003 and 20.11.2003 to 31.03.2006; (c) Ordered appropriation of ₹ 40,32,651/- already paid by appellant for various services; (d) Confirmed demand of interest on the above; (e) Ordered appropriation of ₹ 4,97,480/- already paid; and (f) Imposed penalties under section 76 and 78 of the Finance Act. Being aggrieved, the appellant is now before the Tribunal. 3. On behalf of appellant, the learned counsel Shri Manoj submitted that appellant is confining the contest in this appeal only on the demand raised in regard to CHA Services and Business Auxiliary Services. The details of demand under dispute in this appeal are tabulated by the counsel as below:- Sl. No. Category of Service Demand as per DRI Payment Made Balance Payable Not disputed Disputed demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 77,59,602 40,32,651 9,75,732 50,08,383 27,51,219 14,20,119 13,31,100 4. The learned counsel submitted that appellant contests only Sl.No.1 and SI.No.8 of the table at Annexure-A and also the findings in the Order-in-Original with regard to the amount already paid by appellant. With regard to Sl.No.1 CHA Services, he submitted that they had incurred expenses for obtaining endorsement in A.R-4, DEEC books, Customs examination. That these being actual expenses, which are reimbursed, cannot be included in the taxable value of services. He relied upon the judgment in the case of Union of India Vs M/s, Intercontinental Consultants Technocrats Pvt Ltd. reported in 2014 (35) S.T.R.J99 (S.C.) and in the case of Commissioner of Service Tax, Chennai Vs M/s. Sangamitra Services Agency reported in 2014 (33) S.T.R.137 (Mad) . It was also argued by him, that any amount collected over and above such reimbursable expenses would not be taxable under the category of CHA Services. With regard to the demand under Business Auxiliary Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is neither legal nor proper and requires to be set aside. The amount, if any, collected over and above the actual would not fall under CHA Services. At the most, it would come under Business Auxiliary Services, being services rendered for and on behalf of client. Thus, we hold that the demand in Sl.No.1 under CHA Services is unsustainable and we set aside the same. 8. The second issue is the demand on incentive received from Shipping Liner. This Bench in the case of M/s. Indo Lloyd Freight Systems Pvt. Ltd. (supra) has considered and held the issue in favour of the assessee. The relevant portion of the order reads as under:- The issue has been sufficiently discussed in the case of M/s. Lee Muir Head Pvt. Ltd. Vs Commissioner of Service Tax, Bangalore reported in 2009 (14) S.T.R.348 (Tri.-Bang.) wherein the Tribunal in a similar situation has observed as under:- As regards Brokerage Commission of 2% paid for booking of the export cargo, it is seen that the agents of Shipping Bills normally book the export cargo. The appellants actually get brokerage or commission for getting orders for the export of cargo. For this, they are getting commission of 1.75% to 2%. Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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