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2018 (7) TMI 862 - AT - Service TaxLevy of service tax - Agency Commission - Brokerage Commission for booking of space in the airline - Sub-contract - whether the ‘Agency Commission’ received from M/s. UPS Jet Air Express Pvt. Ltd. is chargeable to service tax? - Held that:- The department has not disputed the fact that M/s. UPS Jet Air Express Pvt. Ltd. are paying them commission from the amount collected from their customers, which includes the bill raised by the appellants on M/s. UPS Jet Air Express Pvt. Ltd. after paying the service tax due on it, so the Commission received by the appellants has already suffered the service tax - Subcontractors are liable to pay service tax whether or not the services are provided by a person in his capacity as a subcontractor and whether or not such services are used as input services - the appellants are not required to pay service tax on the ‘Agency Commission’ received by them from M/s. UPS Jet Air Express Pvt. Ltd. - demand set aside. Business Auxiliary Service - Whether the ‘Brokerage Commission’ received by them from the airlines for booking of space, is liable to service tax under the head BAS? - Held that:- Appellant are not engaged in providing any marketing or promoting services for the airlines or shipping lines - reliance placed in the case of DHL Logistics Pvt. Ltd. vs. CCE [2017 (8) TMI 600 - CESTAT MUMBAI], where it was held that Any commission/incentive received, as a result of this transaction of sale cannot be considered as supply of BAS - demand set aside. Penalties - Held that:- As the main demand itself is not sustainable, the penalties are also required to be set aside. Appeal allowed - decided in favor of appellant.
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