TMI Blog2019 (11) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... vice but still confirms the demand on the ground that the appellants are carrying out ancillary activity, that of a steamer agent - Also, with regard to the same nature of service, the Department has classified under two different services, namely, Steamer Agent Service and Business Auxiliary Service which is also not tenable in law. Further, the Department is seeking to demand Service Tax on the freight element also which is not tenable in law . Business Auxiliary Service - HELD THAT:- Learned Counsel has stated that they have paid the Service Tax along with interest therefore they did not press the demand under this Head. Service Tax demand of Steamer Agent Service is set aside and Service Tax demand of Business Auxiliar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given cargo. The Revenue entertained the view that the services rendered by the appellant is Steamer Agent Services and issued a SCN, besides these, the appellant was also issued SCN for the commissions received from airline for placing cargo with Business Auxiliary Services . The SCN issued to the appellant was confirmed by the Original Authority and upheld by the Commissioner (A). 3. Heard both the parties and perused the records of the case. 4. Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the definitions of Steamer Agent and Business Auxiliary Service. He further submitted that the appellant does not fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices. Further, the appellant is not engaged in providing shipping husbandry services or administrative services for upkeep or renting of the ship. He further submitted that neither in the SCN is there any evidence nor the impugned order gives any findings supporting that the appellant has provided services as steamer agent, rather the impugned order, in fact, admits that the appellant has not provided any steamer agent service but confirms the demand on the ground that the appellant are carrying out ancillary activities that of a steamer agent. He further submitted that it is a settled law that the onus of proving the taxability is on the Department and in the absence of any actual evidence, the SCN cannot survive. For this submission, he r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submitted that substantial demand is time barred because the issue involved in the present case relates to interpretation of taxability and there is no deliberate and positive evidence of wilful mis-statement or suppression of fact on the part of the appellant to invoke the extended period. 5. On the other hand, Learned AR defended the impugned order and submitted that the appellant is acting on behalf of the shipping line and therefore whatever commission is got from the airline, they are liable to pay Service Tax on that. In support of her submission, she relied upon the decision in the case of Bhuvaneswari Agencies (P) Ltd. Vs CCE, Blore, 2007 (8) STR 167 (Tri. Bang.). 6. After considering the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Steamer Agent as stated supra. Further, we find that Revenue has failed to bring any evidence on record while issuing the SCN and while passing the impugned order which justifies the categorization of appellant in the definition of Steamer Agent . Further, the impugned order is contradictory because Learned Commissioner (A) in the impugned order has, in fact, admitted that the appellant has not provided any Steamer Agent Service but still confirms the demand on the ground that the appellants are carrying out ancillary activity, that of a steamer agent. .We note in that view of the judgment of Phoenix Mills Ltd. and the Hon ble Apex Court in the case of UOI Vs Ahmedabad Electricity (supra) that onus of proving the taxability is on the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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