TMI Blog2014 (2) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... ients, we are at this prima facie stage not fully satisfied with the argument advanced by the Ld. Chartered Accountant that the same cannot come under the scope of Business Auxiliary Service provided as held by the Ld. Commissioner in the order with a detailed analysis of the respective work orders issued by the Airlines and the services rendered by the applicant. - stay granted partly. - Appeal No. 305/2012 - ORDER NO.SO/75058/2014 - Dated:- 7-1-2014 - DR. D.M. MISRA AND DR. I.P. LAL, JJ. FOR THE APPELLANT : Sri R. Murlidharan, C.A. Sri Gopal Agarwal, C.A. FOR THE RESPONDENT : Sri S. Misra, Addl. Commr. (A.R.) ORDER Per DR.D.M. MISRA; This is an application filed seeking waiver of pre deposit of Service Tax of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt, is bad in law. Regarding the second aspect of the demand, the Ld. Chartered Accountant submitted that they have received incentives from Airlines, which the Department considered as commission received in relation to making available the cargo space of the airlines to their customers. It is his submission that their services mainly comprises of holding their customers in identifying the airlines that meets the requirement, in terms of carrying cargo to the desired destination and they facilitate the receivers in taking the cargo space for them for which the airlines pay them discount, incentives which cannot be considered as a commission and is taxable. In support, the Applicant had referred to the judgment in the case of Interocean Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive. 6. Heard both sides and perused the records. Prima facie, we find that this Tribunal in Ashistha International case (supra) has observed following the decision of the Hon ble Delhi High Court in Intercontinental s case that once Rule 5 (1) of the Service Tax (Determination of Valuation Rules, 2006) has been struck down as ultra vires to Section 67, then question of fulfillment of conditions laid down under Sub-Rule (2) of Rule 5 of the Service Tax Valuation Rules, 2006, do not arise. Thus, the applicant could able to make out a prima facie case for total waiver of pre-deposit of Rs.16.74 crores confirmed on this ground. However, on the issue of making available the cargo space by Airlines to its clients, we are at this prima facie st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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