TMI Blog2017 (8) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the appellant - Held that: - the only error is that instead of the appellant address at Gurgaon, the address of Mumbai is mentioned. The show cause notice seeks to deny credit on the ground that these addresses are not disclosed under the list of Branch Officers. Show cause notice does not challenge the receipt of use of the service. Since, the invoices are in the name of appellant themselves and the receipt of service by the appellant have not challenged, credit on the same cannot be denied merely because of a different address being shown - credit allowed. Appeal allowed - decided partly in favor of appellant. - ST/85795/14 - A/88448/17/STB - Dated:- 18-7-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Thirumalai Sampath, Advocate for Appellant Shri M.P. Damle, Asstt. Commr. (A.R) for respondent ORDER Per : Raju This appeal have been filed by M/s. DHL Logistics Private Limited against confirmation of demand of duty invoking extended period and also imposition of penalties. 2. Learned Counsel for the appellant argued that the demand has been raised under following heads: (a) Break bulk fee as CHA service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made chargeable under the head of Business Auxiliary Service. The appellants collected freight charges and remit the same to the International Airline Company. Fee for such service cannot be charged to test under Business Auxiliary Service. 2.5. Ld. Counsel further pointed out that the said issue is covered in the case of Phoenix International Freight Services Pvt. Ltd. vs. Commissioner of Service Tax Mumbai-II - 2016-TIOL-2353-CESTAT-MUM . He pointed out that they are paying service tax under the head of Business Auxiliary Service since 1.5.2006. The Ld. Counsel argued that the said amount collected would not be covered under the head of Business Auxiliary Service. 2.6. Learned Counsel further argued that credit has been denied on certain documents which are not in the name of appellant or in which the Mumbai address of the appellant has been mentioned. He argued that Revenue has not challenged the receipt and consumption of the service, credit of the same cannot be denied. 2.7. The Ld. Counsel vehemently argued that the entire demand is beyond the normal period of limitation. He pointed out that proceedings on identical issues were held against the appellant in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services, we remand the matter to the Original authority to re-examine the issue after giving an opportunity to the appellants to produce the Chartered Accountant's Certificate in respect of the various deductions claimed by them including the reimbursement. We have also examined the scope of the Customs House Agent (CHA) as defined in the CHA Regulation, 2004. This cannot be ignored even in the matter pertains to service tax as observed to the contrary by the Commissioner in the impugned order. We have clearly held after going through the definition of CHA in the case of Bax Global India Ltd. v. Commissioner of Service Tax, Bangalore [2008 (9) S.T.R. 412 (Tri.-Bang.)] that the activity of CHA relates to entry or departure of conveyances or import or export of goods at any customs station. Therefore activities of CHA is limited to customs station and it cannot extend beyond it. For example, in the present case, the appellants collected air freight for export from the consignee. This activity relates to freight charges collected for transportation service rendered by airliner. In other words, this freight forwarding cannot be said to be activities of Customs House Agent (CHA). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side. 4.2. Demand has been made on service tax under the head of Business Auxiliary Service for the revenue earned as freight rebate. Ld. Counsel has argued that the income is generated as a result of appellants buying cargo space in bulk and selling the same to foreign shipper, he argued that various essential activity in which there is no third party involved except the appellant and the carriers. In these circumstances demand under Business Auxiliary Service cannot be sustain. It is argued that for sustaining demand under BAS, there has to be third party involved in the transaction namely a client. In the absence of any client, no demand under BAS can be raised. We find substantial force in the argument of Ld. Counsel, the freight rebate is a revenue stream generated out of trading of the space in the airline incentives. Unless the space is booked by the appellant specifically for a client the components of the Business Auxiliary Service do not come into play. In the instant case, there is no such allegation and the appellants are booking the space for their own trading activities. In these circumstances demand of service tax under BAS cannot be sustained and the same is set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that the decision in the case of Phoenix International Freight Services Pvt. Ltd.(supra) does not apply as the appellant in the said case had not contested the liability voluntarily. We find that the show cause notice does not specifically pointed out the sub-head under which demand has been raised for the Revenue generated as CCX fee. The definition of BAS at the material time read as under: 65. Definition In this Chapter, unless the context otherwise requires, (19) 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) any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance evaluation of prospective customer and public relation services. And includes service as a commission again, but does not include any information technology service. Explanation- For the removal of doubts, it is hereby declared that for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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