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2025 (5) TMI 404 - AT - Service TaxLevy of service tax - Business Auxiliary Service - incentive received from the airline companies - HELD THAT - The issue whether the incentive received from the airline companies under the category of Business Auxiliary Service is chargeable to service tax has been settled in favour of the assessee by the decision of the Tribunal in the case of DHL Logistics Private Limited vs. Commissioner of Central Excise Mumbai-II 2017 (8) TMI 600 - CESTAT MUMBAI where it was held that In the instant case the appellant are directly buying themselves and thereafter selling the same to the exporters. In this activity they are receiving incentive and commission based on the total space purchased by them from the airline. This activities can by no stretch of imagination be considered as BAS as for any service to statute the BAS atleast three parties should be involved in the transaction namely the service provider service recipient and the client. In the instant case there are only two parties in the transaction the seller of space and the buyer of space. Any commission/incentive received as a result of this transaction of sale cannot be considered as supply of BAS. In view of above the demand under the head of BAS for the Revenue generated as airline/airline incentive is set aside. Reliance also placed on record the decision in the case of Wig Air Freight Private Limited vs. Commissioner of Central Goods and Service Tax New Delhi 2024 (3) TMI 596 - CESTAT NEW DELHI where the issue under consideration was regarding imposition of service tax on incentives under the category of Business Auxiliary Service . Conclusion - For any service to statute the BAS at least three parties should be involved in the transaction namely the service provider service recipient and the client. In the instant case there are only two parties in the transaction the seller of space and the buyer of space. Any commission/incentive received as a result of this transaction of sale cannot be considered as supply of BAS. The impugned order is set aside - appeal allowed.
The core legal questions considered in this judgment are:
1. Whether the incentive/discount received by a sub-agent from an authorized IATA agent, which in turn receives such incentives from airlines for booking bulk cargo space, is liable to service tax under the category of Business Auxiliary Service (BAS). 2. Whether the incentive amount received can be considered as "consideration" for the purposes of service tax levy. 3. Whether the activity of buying and selling airline cargo space by the sub-agent constitutes a taxable service under BAS or is merely a trading activity exempt from service tax. Issue-wise Detailed Analysis 1. Liability to Service Tax on Incentives under Business Auxiliary Service The legal framework involves the service tax provisions under the Finance Act, specifically the levy of service tax on Business Auxiliary Services, which include services that assist or facilitate business operations of another entity. The relevant charging section is Section 66, which imposes service tax on taxable services for consideration received. Precedents relied upon include the Tribunal's decision in the case involving DHL Logistics Private Limited, where it was held that income from airline commission and incentives received during the course of booking bulk cargo is not taxable under BAS if the activity involves buying and selling of space on the airline on the agent's own behalf and not on behalf of clients. The Court interpreted that for a service to be taxable as BAS, the service provider must act on behalf of a client, involving three parties: service provider, service recipient, and client. In the instant case, only two parties are involved-the seller and buyer of space. Therefore, the incentive received cannot be considered as a supply of BAS. The key evidence includes the nature of the appellant's activity as a sub-agent purchasing space from airlines and reselling it, receiving incentives based on volume. The Court found that this activity is essentially a trading activity rather than rendering of a service facilitating another's business. Competing arguments from the Revenue suggested that the incentive is consideration for promotion of airline business and hence taxable. The Court rejected this, emphasizing the absence of a tri-party service relationship and reliance on the DHL Logistics precedent. The conclusion was that the demand for service tax on incentives under BAS was unsustainable and was set aside. 2. Whether Incentives Constitute Consideration for Service Tax The legal principle revolves around the interpretation of "consideration" under service tax law. The Larger Bench decision in Kafila Hospitality & Travel Private Limited clarified that incentives paid by airlines to travel agents are not "consideration" for taxable services but rather profits arising from trading activities. The Court analyzed that commission is directly linked to the service provided (booking space), whereas incentives represent profits from the difference between negotiated airline rates and charges to clients, hence not consideration for service. Section 66 mandates tax on value of taxable services for which consideration is received. Since incentives lack nexus to service provision, they fall outside taxable consideration. Evidence included the appellant's explanation that incentives are earned from volume-based discounts and not from rendering additional services. The Revenue's argument that incentives promote airline business and thus qualify as consideration for BAS was countered by the Larger Bench ruling, which held that booking air tickets promotes the agent's own business, not the airline's. The Court concluded that incentives cannot be subjected to service tax as they are not consideration for any service. 3. Nature of Activity: Trading vs Service The Court examined whether the appellant's activity of buying and selling airline cargo space constitutes a taxable service or a trading activity. The Tribunal in DHL Logistics distinguished between buying/selling on own account (trading) and acting on behalf of clients (service). The appellant's engagement in purchasing cargo space and reselling it to exporters on its own account was found to be a trading activity. Since service tax is leviable only on services rendered, and trading in goods or space is outside its ambit, the incentive income derived from such trading is not taxable. The Court applied the law to facts by noting the absence of any service rendered to a third party in the transaction involving incentives. Revenue's contention that the appellant was promoting airline business was rejected as the appellant was promoting its own business interests. The conclusion was that the activity is not a taxable service, and incentives derived therefrom are not liable to service tax. Significant Holdings The Court held: "For any service to statute the BAS at least three parties should be involved in the transaction namely the service provider, service recipient and the client. In the instant case there are only two parties in the transaction, the seller of space and the buyer of space. Any commission/incentive received, as a result of this transaction of sale cannot be considered as supply of BAS." It further observed: "The Larger Bench in Kafila Hospitality... concluded that under Section 67 of the Act Service tax is leviable on 'consideration' and incentives cannot be construed as consideration and therefore cannot be subjected to levy of service tax." Core principles established include:
The final determination was that the appellant's liability to pay service tax on incentives received under the BAS category was set aside, and the appeal was allowed accordingly.
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