TMI Blog2019 (4) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... for their customers / client is factually incorrect. It is discussed in detail by the Commissioner that the appellants have discharged the service tax on this extra amount by including under it GTA service. They have availed 75% abatement which is legally available for the said category of service. That amount that has been collected by them for transportation of goods of their clients / customers has been thus subject to levy of service tax under GTA service. Thus the department cannot argue that the said amount has to fall under BAS and the appellant have to discharge service tax under BAS - there is no element that would attract the activity or the amount collected by the appellant in relation to hiring of vehicles or transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and paying hire charges to the vehicle owners as per the agreement entered into between them and the owners of the vehicles. Subsequently, the hired vehicles were used by the appellant to render GTA service to their customers. The appellants were collecting amounts from the customer / client over and above from the contracted value of hire charges. The appellant discharged service tax under GTA on the whole amount received from their customers. However, the difference between the amount received from the customers and the actual amount paid to the vehicle owners as hiring charge for the vehicles hired in which the goods were transported is the margin money. This margin money, according to department, cannot be classified under GTA and woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department has relied upon sub-clause (iv) of Section 65(19) states hat procurement of goods or services which are inputs for client would fall under the category of BAS. In the present case, the appellant does not procure any services which are inputs for their customers. In fact, they are only providing transportation services to the customers. For rendering such services, they are using the vehicles hired from other vehicle owners. For warranting services under BAS, the services must be rendered on behalf of the same person and there should be three parties to the contract. In the present case, the appellants have undertaken to provide transportation of goods to the customers. The customers are not privy to the agreement of hiring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision in the case of Bax Global India Ltd. Vs. Commissioner of Service Tax 2008 (9) STR 412 to canvas the point that if any profit has been made in respect of other activity they cannot be subject to levy of service tax as per the decision of the Apex Court in Baroda electric Meters Ltd. Vs. Commissioner of Central Excise 1997 (94) ELT 13 (SC). 5. The ld. AR Shri K.Veerabhadra Reddy supported the findings in the impugned order. He adverted to para 16 of the impugned order and submitted that the appellants have collected extra amount over and above the hiring charges. This amount has no bearing on the GTA service. Therefore, it would fall under BAS. This extra amount relates to procurement of goods or services which are inputs f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced as under:- 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) procurement of goods or services, which are inputs for the client; or Explanation for the removal of doubts, it is hereby declared that for the purposes of this sub-clause, inputs means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of, the client; or (vi) provision of service on behalf of the client; or (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition to allege that the extra amount collected is in the nature of commission received by the appellant for procurement of goods or services which are inputs for their customers. On perusal of the facts, we find that the customers to whom the appellant has provided GTA services has no knowledge whether the appellant is rendering service of transport of goods by using their own vehicles or by using the vehicles hired from other vehicle owners. This being the case, the allegation of the department that the extra amount collected is for procurement of services for their customers / client is factually incorrect. 10. In para 16 of the impugned order, it is discussed in detail by the Commissioner that the appellants have discharged the se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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