TMI Blog2018 (7) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... f SCN - Business Support Services - Held that:- It is seen that the Commissioner has confirmed the demand under BAS. It is found that the Commissioner has travelled beyond the scope of the show cause notice. For this reason, the demand cannot sustain - demand of service tax on freight charges under BAS is unjustified and requires to be set aside. Services provided to SEZ Unit - benefit of N/N. 4/2004 - Held that:- Even if the event is held outside, since the services were for advertisement of product of SEZ, the services provided is to be considered as consumed within SEZ - benefit of notification allowed. Appeal allowed - decided in favor of appellant. - ST/EH/41888 & 41889/2017 and ST/152 & 153/2012 and ST/CO/32 & 33/2012 - 41012-41013/2018 - Dated:- 28-3-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Muthuvenkataraman, Advocate for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent ORDER Per Bench The appellants are registered with the service tax department under the category of Business Auxiliary Service, Business Support Service, Cargo Handling Service, Storage Warehous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of Dispute Amount (In Rupees) 293/2010 dt. 21.4.2010 106/2011 dt. 30.11.2011 Oct. 2004 to March 2009 58,69,92,442 543/2010 dt. 30.9.2010 April. 2009 to March 2010 10,06,92,132 329/2010 dt. 23.4.2010 129/2011 dt. 28.12.2011 Oct. 2004 to March 2009 15,38,58,064 4. The ld. counsel submitted that the issue whether the ocean/air freight charges are taxable under BAS has been held in favour of the assessee in the following cases:- a. Bax Global Ltd. Vs. Commissioner of Service Tax, Chennai - 2017 9 TMI 1264 b. Skylift Cargo Pvt. Ltd. Vs. Commissioner of Service Tax, Chennai - Final Order No. 42242 to 42244/2017 dated 20.9.17 c. Leap International Vs. Commissioner of Service Tax, Chennai - ST/475/2011 decided on 12.3.2018 d. Greenwich Meridian Logistics (I) Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai - 2016 (43) STR 215 e. Phoenix International Freight Services Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai - 2017 (47) STR 129 5. It was add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 airlines to the assessee. On the other hand, the assessee recovers full freight from the exporters and the difference between the purchase and sale price is retained by the assessee. (e) The assessee issues House Airway Bills to their customers based on which the transportation takes place and, therefore, act in the capacity of a transporter/principal, rendering service to exporters (f) Freight Forwarder rendering service as a principal has been recognised by CBEC in Education Guide as well as in their Circular of August 2016. (g) The matter is no longer res integra and have been held in their favour, vide a number of decisions, namely:- (i) Commissioner of Service Tax, New Delhi Vs M/s. Karam Freight movers reported in 2017 (4) G.S.T.L.215 (Tri.Del.). (ii) DHL Lemuir Logistics Pvt Ltd Vs Commissioner of Central Excise, Thane-1 reported in 2016-TIOL-1455-CESTAT-MUM. (iii) Phoenix International Freight Services Pvt Ltd. Vs Commissioner of Service Tax, Mumbai-Il reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was already paying service tax on commission received from airlines/shipping lines under business auxiliary service since10-9-2004. The original authority recorded that the show-cause notice did not specify as to who is the client to whom the respondent is providing service. Original authority considered both the scenario, airline/shipping lines as a client or exporter/shipper as a client. In case, the respondent is acting on behalf of airlines/shipping lines as client, it was held that they are covered by tax liability under BAS. Further, examining the issue the original authority viewed that commission amount is necessarily to be obtained out of transaction which is to be provided by the respondent on behalf of the client, that is, the exporters. The facts of the case indicated that the mark-up value collected by the respondent from the exporter is an element of profit in the transaction. The respondent, when acting as agent on behalf of airlines/shipping lines was discharging 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51. Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 5.2 The intention of the notification as well as Section 26 of the SEZ Act, is to exempt the taxes/duties payable on goods and services provided to SEZ unit/developer, the supply of goods and services to SEZ being deemed exports, Therefore, taking into consideration the impact of Section 51 of the SEZ Act which provides for overriding effect over any other law, we are of the considered opinion that the benefit of tax exemption cannot be denied by giving a restrictive interpretation to Notification No. 4/2004 Our view is supported by the fact that the notification which superseded notification No. 4/2004 has categorically stated that whether or not the taxable services are provided inside the SEZ, the exemption is available, The relevant portion of the Notification No. 9/2009 is reproduced as under:- In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994), and in ..... 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