TMI Blog2014 (8) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... Tobacco products India Ltd. [2004 (7) TMI 91 - SUPREME COURT OF INDIA] refers - Therefore, we are prima facie of the view that the services rendered by the appellant would merit classification under ‘business auxiliary services' as defined in law. As regards the question of time-bar, this is both a question of fact and law and has to be examined in depth after going through the documents available on record, which can be conveniently dealt with at the time of final hearing of the appeal. The demand for the normal period would be ₹ 5.8 crore approximately. The appellant does not plead any financial hardship. In the absence of a prima facie and financial hardship, balance of convenience lies in ordering pre-deposit - stay granted par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the consideration received implies rendering of some service and by using the software of the CRS companies, the appellant is promoting the business of CRS companies and, therefore, the said activity comes within the category of Business Auxiliary Service' as defined under Section 65(19) of the Finance Act, 1994. The learned Consultant submits that the appellant is only a mere user of the software and they are not promoting the business of the CRS companies. Since the software is used for booking of tickets for travel by air, the service has been rendered in relation to booking of tickets for travel by air and, therefore, if at all the activity would merit classification under air travel agent service' and not under business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... software for a specific period. In these circumstances, it is prayed that stay be granted against the impugned demands. 4. The learned Commissioner (AR) appearing for the Revenue, on the other hand, strongly rebuts the contentions made on behalf of the appellant. He submits that by using the software of the CRS companies, the appellant is promoting the marketing/sale of the software or the services of the CRS companies. Therefore, the activity undertaken by the appellant would come within the purview of promotion or marketing or sale of the goods or promotion or marketing of services belonging to /provided by the client. He also points out that business auxiliary services' also includes in its scope, services of a commission agent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the appellant is receiving incentives. In one of the agreements entered into with M/s. Amadeus India Pvt. Ltd., it is also provided that subscriber will allow Amadeus India use of its name, logo etc. in promotion /advertisement information etc. The agreement also provided for usage of the software for a specific period and payment of incentives to the appellant for usage of the said software. 5.1 The question is why is the appellant is getting paid by way of incentives and for what purpose? There is no dispute about the fact that it is for usage of the CRS software the appellant is getting paid. What is the service provided in the transaction? The service provider gains by marketing the CRS software and by also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal, those decisions were rendered in a different context altogether and the issue of transaction between CRS companies and air travel agent was not one of the issues therein. It is a settled position in law that when the facts are different and distinguishable, the ratio of a decision cannot be blindly applied. The decision of the hon'ble apex Court in the case of Al Noori Tobacco products India Ltd. 2004 (170) ELT 175 (SC) refers. 5.4 Therefore, we are prima facie of the view that the services rendered by the appellant would merit classification under business auxiliary services' as defined in law. 5.5 As regards the question of time-bar, this is both a question of fact and law and has to be examined in depth after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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