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2022 (10) TMI 882 - HC - Service TaxMaintainability of appeal - appropriate forum - section 35L of the Excise Act - Classification of services - CHA service or not - revenue earned under the head Break Bulk Fee - revenue generated as airline/airline incentive - Business Auxiliary Service or not - penalty u/s 78 of the Finance Act, 1994 - HELD THAT:- Reliance placed upon the respondent’s own case DHL LEMUIR LOGISTICS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE [2009 (3) TMI 158 - CESTAT, BANGALORE], wherein it had held that the Break Bulk Fee would not be includable in the computation of service tax towards CHA Services. Revenue earned as freight rebate - HELD THAT:- The Tribunal further held that the service tax under the head Business Auxiliary Service could not be charged on the revenue earned as freight rebate inasmuch as the freight rebate was the revenue stream generated out of trading of the space in the airlines incentives, and that unless the airline was booked specifically for a client, the components of Business Auxiliary Service did not come into play. It also held that the appellant (respondent herein) was booking the space for its own trading activities, and therefore, in those circumstances, held that demand of service tax under Business Auxiliary Service could not be sustained. Income under the head airlines commission and airline incentives - HELD THAT:- The Tribunal held that the same could not be considered as supply of Business Auxiliary Services, and therefore, set aside the demand in that regard. In view of the specific provisions of section 35L of the Excise Act, 1944, determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment would be a subject matter of appeal before the Hon’ble Supreme Court - the appeal is disposed of as not maintainable before this Court.
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