TMI Blog2018 (2) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... that commission earned by the assessee while acting on behalf of the exporter and mark-up value was of freight charges are not to be considered as commission - demand set aside - appeal allowed - decided in favor of appelalnt. - ST/00026/2008, ST/00205/2009 & ST/41474/2013 - 42242-42244/2017 - Dated:- 20-9-2017 - Smt. Sulekha Beevi C.S, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) For the Assessee - Shri D. Arvind, Cons. Shri S. Viswanathan, Adv. For the Revenue - Shri A. Cletus, ADC (AR) ORDER Per: Bench All these appeals concerning the same issue and were taken-up together for common disposal. 2. The facts of the case are that assessee M/s. Skylift Cargo (P) Ltd., [hereinafter refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for assessee to promote any particular airline unlike, a GSA. (b) The space so booked in airlines at a particular rate is allotted to single or multiple customers or in multiple consignments to single customer for a profit. (c) This freight difference (difference between price at which it is booked with airlines and the price at which it is offered to customers) is accounted as Incentive, Discount, Overriding Commission, Market Price Adjustment etc., depending upon the terminology used by the airlines. This is evident from the CA Certificate and the subsequent period notices. (d) While the department stand is that this freight difference is earned on account of promoting an airline, whereas, there is no payout by the airlin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the very same issue on which appeal has been filed, for number of subsequent show-cause notices, the matter has been decided in their favour by the Commissioner (Appeals). In fact, in one of such cases, the department is in appeal no.ST/41474/2013. (i) What has been termed as an incentive is nothing but freight difference, the fact of which has been certified by the CA certificate. The subsequent notices issued by the department also vindicate this stand. 3. On the other hand, learned departmental representative supports the impugned orders in respect of the appeals filed by the assessee. He also reiterates the grounds of appeal in respect of department's appeal no.ST/41474/2013. 4. Heard both sides and have gone throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the impugned order examined the issue in detail. It was recorded that the income earned by the respondent to be considered as taxable under any service category, should be shown to be in lieu of provision of a particular service. Mere sale and purchase of cargo space and earning profit in the process is not a taxable activity under Finance Act, 1994. We are in agreement with the findings recorded by the original authority. In this connection, we refer to the decision of the Tribunal in Greenwich Meridian Logistics (1) Pvt. Ltd v. CST, Mumbai - 2016 (43) S.T.R. 215 (Tri. - Mumbai). The Tribunal examined similar set of fact and held that the assessee often, even in the absence of shippers, contract for space or slots in vessels in antic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging service tax with effect from 10-9-2004. However, with reference to amount collected from exporters/shippers the original authority clearly recorded that it is not the case that this amount is a commission earned by the respondent while acting on behalf of the exporter and said mark-up value is of freight charges and are not to be considered as commission. Based on these findings, the demand was dropped. We do not find any impropriety in the said finding. The grounds of appeal did not bring any contrary evidence to change such findings. Accordingly, we find no merit in the appeal by Revenue. The appeal is dismissed. 6. We also find that this very Bench also in recent decision in the case of Tax Global India Ltd., Vs Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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