Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2023 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (6) TMI 1195 - AT - Service TaxNon-payment of Service Tax - providing Custom House Agent (CHA) and freight forwarding services - Air freight commission - Sea freight commission - Service Charges - Documentation charges - airport/port truck charges - other direct reimbursements - reverse charge mechanism - extended period of limitation. Air Freight Commission - It is the contention of the Appellant that this service was rendered in connection with export of goods and therefore, no service tax will be leviable on such services - HELD THAT:- The services rendered by the Appellant were related to export of goods and hence there is no liability of service tax on the commission received from the airlines in connection with the goods exported - this view has been held in Robinson Air Services Vs. CCE, Delhi [2016 (10) TMI 680 - CESTAT NEW DELHI] that demand will not be upheld in such issue - the demand confirmed in the impugned order on this count is not sustainable. Service charges - HELD THAT:- Even though the Appellant has contested the issue earlier, they are not contesting it now and paid the service tax on these service charges collected. Hence, the demand confirmed in the impugned order on this count is upheld. Documentation charges - handling charges - DO charges and other direct reimbursements - HELD THAT:- The Appellant had produced sample invoices and after verifying the same the adjudicating authority has accepted their contention in respect of those 40 entries in the order-in-original. The appellant stated that since the data is huge and bulky, from the year 2002-03 to 2006-07, they requested the Adjudicating Authority to depute an officer to the Appellant’s premises to verify the remaining invoices, in case he has any doubt about the nature of reimbursements in respect of the remaining entries and submitted a worksheet containg all reimbursements. This fact has been recorded in the impugned order by the adjudicating authority . Therefore, it is not open to the Adjudicating Authority to confirm the demand on the ground that all invoices have not been produced. The issue as to whether reimbursable expenses are liable to be taxed or not is settled by the decision of the Hon’ble Supreme Court in the case of UOI Vs. Intercontinental Consultants and Technocrats Pvt. Ltd., [2018 (3) TMI 357 - SUPREME COURT] wherein the Hon’ble Apex Court has affirmed the decision of the Delhi High Court striking down Rule 5(1) of the Valuation Rules, 2006, which provides for inclusion of expenditure or costs incurred by the service provider in the course of providing taxable service in the value, as ultra vires - As the issue has already been settled by the decision of the Hon'ble Apex Court, the demand confirmed on the reimbursable expenses in the impugned order is not sustainable. Pickup charges - HELD THAT:- It is observed from the Show Cause Notice that the transportation charges and loading unloading charges were referred to as pick up charges in the Notice. In the earlier Order-in-Original dated 31.01.2009, the adjudicating authority has dropped the demand for the period prior to 01.01.2005 and has allowed abatement of 75% under GTA services - the demand of service tax on these charges have been made in the Notice under CHA service. There is no liability of service tax under CHA service on these charges. Accordingly, the demand confirmed in the impugned order is beyond the scope of the Notice and accordingly hold that the demand on this count is not sustainable. Income from M/s GE Industrial Ltd. - amounts recovered from GE Industrial Ltd., for clearing and forwarding - HELD THAT:- The Notice has proposed to levy service tax on these charges under the category of C&F agency services. The OIO has confirmed the levy under CHA services. Thus, the impugned order has travelled beyond the Show Cause Notice and hence the demand confirmed on this count is not sustainable. Time limitation - HELD THAT:- The Notice was issued on 17.10.2017, by invoking the extended period. As there was no suppression involved, the demands confirmed by invoking the extended period not sustainable, the Appellant has been discharging service tax with respect to the service charges received - There is no suppression involved in this case and hence extended period not in-vocable. Hence, the demands confirmed by invoking the extended period in the impugned order are not sustainable. Appeal allowed in part.
|