TMI Blog2012 (10) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... s/freight forwarders - SCN issued by the Department was vague as it did not specify under which specific clause of “Business Auxiliary Service”, the activity of the appellant falls into - Order-in-Original has traveled beyond the Show Cause Notice by specifying the activity of appellant falls within the ambit of Section 65(19)(ii) and also liable to tax as commission agent service under the category Business Auxiliary Service - Appeal allowed - - - 133/2011(MST) - Dated:- 23-8-2011 - Shri P. Ayyam Perumal, J. REPRESENTED BY : Shri R. Srinivasan, Consultant, for the Assessee. None, for the Department. [Order]. This is an appeal filed by M/s. Seagull Freight Systems, Chennai (hereinafter referred to as appellant), against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original. 3. Aggrieved by the impugned order, the appellant had filed the present appeal mainly on the following grounds - (i) that it is not in dispute that they are Custom House Agents and while providing the output service to their clients they engage the service of the liners. The very job of the Custom House Agent s is facilitating the movement of cargo of their clients. For facilitating the movement of cargo they arrange various shipping liners. This does not in any way mean that the appellant is doing anything positive to promote or market the activity service of the liners. In the circumstances, the inference drawn by the Lower Adjudicating Authority that the appellant is promoting/marketing the business of the Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii) that an incidental service to a main output service provided not to be considered as separate service. (viii) that the appellant is registered with the Service tax authorities under Custom House Agent and Goods Transport Agency services and has been duly depositing Service tax with respect to the other amounts, which are liable to service tax. The appellant had also filed service tax returns for the relevant period regularly which fact has been admitted by the Learned Lower Adjudicating Authority in his findings in the impugned order. It is submitted that once the returns are submitted on self assessment basis disclosing the income received from their clients, suppression of facts cannot be alleged and extended period of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account the total income of the Financial Year. 5. I have carefully gone through the records of the case and submissions made by the appellant. The issues to be decided are whether- (i) the demand is hit by limitation of time as claimed by the appellant (ii) the appellant is liable to pay service tax on the 2% commission/incentive received from shipping liners/freight forwarders. 5.1 I find from the records that the appellant had been issued with show cause notice for non-payment of service tax on 2% commission/incentive received from Shipping liners/freight forwarders. The appellant is registered service provider of Custom House Agent service and Goods Transport Agency service. It is an undisputed fact that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of 2% paid for booking of the export cargo, it is seen that the agents of shipping lines normally book the export cargo. The appellants actually get brokerage or commission forgetting orders for the export of cargo. For this, they are getting commission of 1.75% to 2%. Even if this activity is considered as Business Auxiliary Services as they promote the taxable services of other person, it is seen that there is a Notification No. 13/2003, dated 20-6-2003 which gives exemption under Business Auxiliary Service for services rendered as commission agent. Moreover, Board s Circular dated 25-4-2003 clarifies that the secondary service providers are not taxable. In fact the appellants are secondary service providers for the shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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