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2023 (12) TMI 568 - CESTAT CHENNAILevy of service tax - Business Support service or not - amount accounted as net-operating income in the financial accounts of the appellant is a consideration received by the appellant for providing services - extended period of limitation - HELD THAT:- The appellant being a freight forwarder has discharged the service tax on the amount received for providing freight forwarding services. The amount accounted under ‘net operating income’ is now brought to levy of service tax under BSS. This amount is only excess of the freight charges. The differential freight earned by the appellant is not consideration for services rendered by them to their client. The issue as to whether the difference in the freight charges is a consideration for services and is liable to service tax was analysed in various decisions. In the case of GREENWICH MERIDIAN LOGISTICS (INDIA) PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX MUMBAI [2016 (4) TMI 547 - CESTAT MUMBAI], the very same issue came up for consideration and the Tribunal held that the notional amount earned by the assessee from purchase and sale of cargo space cannot be subject to levy of service tax. In the case of COMMISSIONER OF SERVICE TAX, NEW DELHI VERSUS M/S. KARAM FREIGHT MOVERS [2017 (3) TMI 785 - CESTAT NEW DELHI] it was held that demand of service tax on the income earned by the assessee is profit earned out of sale of cargo space and cannot be subjected to levy under BAS. After considering the submissions and following the decisions, it is opined that the demand of service tax cannot sustain and requires to be set aside. Time Limitation - HELD THAT:- Demand has been raised after the verification of the accounts of the appellant by Audit Group. The quantification of demand has been arrived from the accounts maintained by appellant - there are no positive act of suppression with intent to evade payment of tax established by department Further, the issue is contentious and there are several decisions in favour of assessee - the SCN issued invoking extended cannot sustain. The issue on limitation is also answered in favour of appellant. The impugned orders are set aside - Appeal allowed.
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