TMI Blog2018 (5) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant Shri D. Arvind, Consultant for the Respondent ORDER Per Bench This appeal is filed by the department aggrieved by the order passed by the Commissioner (Appeals) who set aside the demand on the ground of limitation for the period upto 1.10.2007 and also set aside the demand on certain services on merits. 2. Brief facts are that the respondents are rendering Custom House Agent Service, Cargo handling Service, Business Auxiliary Service and Goods Transport Agency Service. During the audit conducted, it was noticed that (a) They have not paid service tax of ₹ 10,41,855/- on terminal handling charges for the period 2006 07 and 2007 08. (b) They have not paid service tax on the entire amount coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved, the department is now before the Tribunal. 4. The ld. AR Shri K. Veerabhadra Reddy appearing on behalf of the appellant submitted that non-payment of service tax came to light during the course of audit of accounts. The respondents had not paid service tax of ₹ 10,41,855/- on the terminal charges collected from their clients during the period 2006 07 and 2007 09. The respondents had added their own margin and there is a difference between the amount charged by airport authorities and the amount collected by the service provider (respondent) from their clients. Though the provider of custom house agent service is eligible for exclusion of expenses incurred by them, while providing taxable service, it is subject to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, overriding commission received by them for booking the cargo space. The said incentive cannot be taxed under BAS. That some of the expenses are reimbursable expenses like rent recovered etc. which has been considered by the Commissioner (Appeals). Thus, the show cause notice itself did not have much clarity as to what is the margin that is sought to be taxed under terminal handling charges. There is no clarity in the show cause notice or the orders passed by authorities below as to how the airway bill fees and freight charges taxable under BAS. The adjudicating authority has considered the issue in para 16.5 to 16.7 and referred to the Stay Order No. 391/2009 dated 11.5.2009 in para 16.8 in respect of the respondent‟s own case. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd IAAI provides storage space and the charges are paid for the same. The respondent receives commission / incentive for such booking of cargo space. The handling charges, service charges etc. are nothing but reimbursable expenses. These are brought out from the ledger figures. The issue whether the incentives / discounts received for booking of cargo space is subject to levy of service tax was under litigation and in the respondent‟s own case vide the final order cited supra held in favour of the respondent. Similarly, the reimbursable expenses whether subject to levy of service tax was also under litigation and was finally settled by the Hon ble Supreme Court in the case of Union of India Vs. Intercontinental Consultants and Technoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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