TMI Blog2015 (8) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... omers to the appellant are leviable to service tax. We cannot agree with this contention. The appellant is paying service tax under Steamer Agent services on all activities including some documentation charges and all such charges are credited to the account of the Principal as per the Agency Agreement. The remaining charges i.e. those on which service tax demand has been raised relate to activities performed by the appellant independently for their customers. The appellant did not remit these charges to the Principal. We find nothing in the Agreement which states that the appellant cannot provide such service and cannot receive charges from the customers for such activities. Therefore, we conclude that these activities constitute servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onour charges, destination documents fees, late B/L charges are leviable to service tax under the Business Auxiliary Services. 3. For appreciation of facts it is seen that the appellant had entered into an Agency Agreement with CMA-CGM France (their Principals who are the owner of an International Shipping Company) for providing the Principal with various services in India grouped as port operations, logistics, documentation, finance freight transfers, accounts reporting, information systems. Under these group services the appellant was paid by the Principal for activities namely commission on outbound/inbound freight, transhipment fee, container control fee, communication expenses, container damage recovery commission, demurrage collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Balance Sheets and its Notes to the Accounts which recognized commission income, documentation, administration communication fees, container handling charges on the basis of services rendered as per Agency Agreement with the Principal. Although, the show cause notice does not specify under which clause of Business Auxiliary Service the demand is made, during the course of hearing the A.R. agreed that the demand can only be made under Clause (iii) of Section 65(19) which reads as any customer care service provided on behalf of the client. 4. The contention of the Ld. Counsel is that all members of MANSA (Ship Agents Association) were under a bonafide belief that documentation and related services provided to Indian importers/exporters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions of both sides. We note that the show cause notice in the present case does not refer to any specific clause of the BAS service which is reproduced below as it stood for the period upto 15.6.2005 - business auxiliary service means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or (v) production of goods on behalf of, the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. AR argued that the Agency Agreement clearly provides for payment of documentation charges to the Principal. The appellant provides end-to-end solutions to the customers and therefore, all charges including those directly paid by customers to the appellant are leviable to service tax. We cannot agree with this contention. The appellant is paying service tax under Steamer Agent services on all activities including some documentation charges and all such charges are credited to the account of the Principal as per the Agency Agreement. The remaining charges i.e. those on which service tax demand has been raised relate to activities performed by the appellant independently for their customers. The Ld. Counsel states that the latter payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under BAS in the face of the fact that similar services of documentation under the Agency Agreement were classified under Steamer Agent Service. Thus there appears to be a contradiction in the stand of Revenue. It is also not explained why the service tax is not demanded on similar activities in the case of M/s. APL (India) Pvt. Ltd. 6. As the appellant is not contesting the demand from 16.6.2005 onwards which is paid by them along with interest before issue of show cause notice, we accept the appeal to the extent of setting aside the demand of service tax for the period prior to 16.6.2005. As we have decided the issue on merits we do not find it necessary to go into the aspect of limitation. We find there was bonafide confusion in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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