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2015 (8) TMI 744 - CESTAT MUMBAI

2015 (8) TMI 744 - CESTAT MUMBAI - 2015 (40) S.T.R. 152 (Tri. - Mumbai) - Business Auxiliary Service - Section 65 (19) of the Finance Act, 1994 - assistance to clients in payment of octroi and complying with the provisions of BMC Act - Held that:- Mere reading of the invoices and the challans by the appellant, (the octroi agent) for the purpose of filling up the form and obtaining clearance at the check post, does not amounts to dealing with or handling the documents of title. One can in the nor .....

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ants have handled or are handling the documents of title - Decided in favour of assessee. - Appeal No. ST/357/10 - Final Order No. A/2241/2015-WZB/STB - Dated:- 7-7-2015 - Anil Choudhary, Member (J) And Raju, Member (T),JJ. For the Appellant : Shri Rajeev Luthia, CA For the Respondent : Shri R K Das, Dy. Comm. (AR) ORDER Per: Anil Choudhary: 1. The appellant is an octroi clearing agent having licence issued by the Bombay Municipal Corporation. The appellant is in appeal against Order-in-Appeal N .....

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ing therein that they have received an amount of ₹ 9,63,576/- for the services provided to M/s. Lubrizol India Ltd., being the amount paid by Lubrizol India Ltd., @ 2.5% by way of service charges of the Octroi amount. The nature of business as explained by the learned Counsel for the appellant is that when the goods are arrived at the check post or Octroi post they facilitate in payment of Octroi by filling up various forms and presenting the same before the Octroi authorities for the corr .....

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pears to the Revenue that the said services provided by the appellant is classifiable under head "Business Auxiliary Service" under heading 65 (19) of the Finance Act, wherein clause (vi) provides Business Auxiliary Service means any service in relation to provision of service on behalf of the clients and further clause (vii) provides as incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, m .....

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Further penalty was proposed under Section 76, 77 & 78 of the Act. 4. The appellant contested the show-cause notice on the ground that they do not provide any of the services as mentioned in clause (i) to (vi) of Section 65 (19) of the Act, nor they provide any incidental or auxiliary services to any of the activity specified in sub-clause (i) to (vi) of Section 65 (19) of the Finance Act. It is also contended that they do not act as commission agent and the nature of services provided by t .....

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rted in 2007 (8) STR 78, wherein it was held that activities of Octroi Clearing Agents are neither liable under the category of "Clearing and Forwarding Agents Service" not under the category of "Business Auxiliary Service" for payment of service tax. 5. The show-cause notice was adjudicated and the demands were confirmed, holding that the activities of the appellant involve handling of documents of title of goods for obtaining octroi clearance. Accordingly, in view of the ex .....

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luded as taxable category from that date. Aggrieved with the above order, the appellant preferred an appeal before the Commissioner (Appeals), who have rejected the appeal upholding the findings of the lower authorities. 6. It was further observed that the definition in sub-clause (b), "deals with", indicate that to take measures concerning with anything would come within the definition. Further, having commercial trading need not mean only sale or purchase. The accompanying goods for .....

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nature of "Business Auxiliary Service" under Section 65(19) of the Finance Act. It is further contended that for the purpose of obtaining clearance under octroi provisions, they are simply required to read the documents of title, being the invoices or challans, have to fill up the forms, for the purpose of assessment of the octroi amount, which does not amount to handling of documents. They have no authority from their principal to handle the documents of title, as they cannot make any .....

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) of the Finance Act., under which the assessee was required to pay tax. It was held by this Tribunal that no demand can be confirmed against any person towards service tax liability unless the sub-clause is specified. As assessee should know vide the notice as to exact liability under the statute and it was held for such of vagueness, where scant nature of proposed demand is not provided under which an assessee is taxable, and the gross amount on which taxes demanded from an addressee, for such .....

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