9911796707
TMI Blog2017 (10) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs imposed has been sustained. 2. The brief facts are that:- i) The appellants are rendering services of air travel agent to their customers and are registered with service tax department. ii) The appellant utilized computer reservation software provided by Galileo for booking of air tickets for their customers. iii) As there were other CRS (Computer reservation software) systems namely ABACUS and AMADUS available, M/s. Galileo paid the incentive (commission) to the appellant assessee for continued usage and patronage of M/s. Galileo's CRS system, which is also known as GDS - Global distribution system. iv) The department's stand is that the incentive (Commission) received from Galileo India Pvt. Ltd. (Galileo) by the appellant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no evidence that the appellant marketed or promoted sale of said CRS / GDS software system in India. v) There is no term in the contracts suggesting that the appellant acted as an agent of Galileo and did not conduct any activity which can be covered as business auxiliary services. 5. The Ld. DR for the Revenue reiterates the findings of the impugned order. 6. After having carefully considered the facts of the case and submissions of both the sides including from the document namely Galileo by Travelport; Offer to M/s. Dalmia Cement Bharat Ltd. (who is the group to which the appellant belongs to) (Offer no. ITQPL / BOM / 022-755) it appears that M/s. Dalmia Cement (Bharat) Ltd. and InterGlobe Technology Quotient Private Ltd. (IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or (v) production or processing of goods for, or on behalf of the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any activity that amounts to "manufacture" of excisable goods. 8.1. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id product. At the strength of the written submission, he also submits that the amount received from GDS/CRS cannot be treated as deemed commission. So, the amount received is not taxable as no service has been provided. This is merely an incentive. The incentive received for usage of GDS/CRS does not attract the Service Tax. There is no promotion or marketing of business of GDS/CRS service provider as ultimate customer buying air ticket is not concerned from what GDS/CRS he is being provided air ticket. The assessee-Appellants are in no way connected to the service rendered to the customers nor is billed to the customers. He also relied upon the ratio of the Tribunal in the case of Kerala Publicity Bureau vs Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee-Appellants being providing 'Tour Operator's Service', the commission received by them is for 'Business Auxiliary Service' under Section 73(1) of the Finance Act, 1994. The case law cited by the learned counsel for the assessee-Appellants is not applicable in the instant case as the same was dealing with the advertising agencies. So, on the facts, the ratio laid down in the said case is not applicable to the present case. 6. Needless to mention that in the "Central Excise, Customs & Service Tax Budget, 2016-17 (published by the legal Matrix Publications, Delhi-9, on page 258)' makes a reference to High Level Committee and states that certain issues were clarified and there in paragraph 15.1.2, it was mentioned that: "15.1.2 It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 195/- whereas the penalty has been imposed of Rs. 3 lakhs, the said penalty therefore, is reduced to Rs. 2,59,195/-. As the penalty has been revised, in the light of the decision of the Hon'ble High Court in the case of CCE & Service Tax Vapi Vs. Sudhir Gensets Ltd. 2014 (304) ELT 251 (Guj.), the appellant is eligible for the option to pay 25% penalty if the conditions laid down under section 78 are fulfilled. Consequently, the appellant is given the benefit of option to discharge 25% of penalty on fulfillment of the conditions provided under Section 78 of the Finance Act.
10. In the result, impugned order is modified to above effect and the appeal stands disposed of accordingly.
[Order Pronounced in the open court on 04.09.2017] X X X X Extracts X X X X X X X X Extracts X X X X
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