TMI Blog2019 (2) TMI 1877X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner has correctly held that service provider can be called as the Customs House Agent, if they are granted licence temporarily or otherwise, under CHA Regulations made under Section 142(2) of the Customs Act. It is admitted fact that respondent is not CHA which is also mentioned in the impugned order. But we find that the respondent has registered as Customs House Agent by the service tax Department even though the same is contrary to the provisions of the Finance Act as evident from the definition of Customs House Agent under Section 65(35) of the Act and taxable services under the provisions of Section 65(105) of the Act. The transportation charges etc. had been paid by their client and the Service Tax on the said charges had also been discharged by their client as consignee on reverse charge basis. Therefore, the same cannot be charged to Service Tax on account of the respondent once again - the respondent has erroneously got themselves registered with the Service Tax Department under the category of Customs House Agent and paid Service Tax. The erroneous registration will not rendered them liable to pay the service tax as CHA and service tax cannot be collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing CHA services, Deep was being paid ₹ 200 per container by the respondent as the service charge but the respondent was raising invoices to their clients for ₹ 300 per container. It was also discovered that Deep was also raising debit notes for various expenses, such as documentation expenses, crane handling charges, labour charges, weighment expenses, miscellaneous expenses etc., to the respondent and the respondent in turn was raising debit notes to their clients for said expenses and thus the respondent was required to pay the Service Tax on the amount received through same debit note, in view of provisions of Section 65(105)(h) of the Act read with Section 65(35) of Finance Act. After investigation and recordings of the statements, the show cause notice dated 3-9-2013 was issued to the respondent which culminated into the impugned order. 4. The Department is aggrieved by the impugned order the adjudicating authority has dropped the entire demand on the ground contained in the order, which is on account of the fact that the respondent is not covered under the definition of Customs House Agent under Section 65(35) of the Act, and therefore, whatever has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice which is as under : The noticee started rendering impugned services through M/s. Deep Handling Services w.e.f. 16-4-2010. For rendering impugned services, Shri Kuldeep Singh, Proprietor of M/s. Deep Handling Services had obtained authorisation dated 22-3-2010 (copy appended as Annexure-I to this notice) as H-card holder from M/s. Pooja Travels Cargo Services, New Delhi. Further, prior to 16-4-2010, the noticee was using license of M/s. Pooja Travels Cargo Services, New Delhi through authorisation to Shri Prakash Chand, as their G-card holder . 7. This clearly indicated that the respondent is not having registration as Customs House Agent but are acting as the delegated authority, under CHA Regulations, on behalf of the CHA M/s. Pooja. The respondent was paying the service tax only on a part of gross amount charged but not including the substantial portion of the amount received through the debit notes. This fact was completely ignored by the adjudicating authority. 8. It was also contended by the Revenue that although the respondent has said that the various other charges, which were recovered from their client was in the nature of services which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered as Customs House Agent which is also not disputed by the Revenue. At no point of time the respondent has acted as the CHA, but only arranged the services of CHA for the clearance of import and export cargo on behalf of their clients at the CFS. In this regard, we also find it appropriate to refer to the definition of Customs House Agent under the Finance Act. The Customs House Agent is defined under Section 65(35) as under; Section 65(35) Customs House Agent means a person licensed temporarily or otherwise, under the regulations made under sub-section (2) of section 146 of the Customs Act, 1962. The taxable service are defined under Section 65(105) of the Act which is as under; Section 65(105) : Taxable service means any service provided or to be provided - (i) To any person by a custom house agent in relation to the entry of departure of conveyances or the import or export of goods 13. It is on record that the DGCEI conducted investigation considering the respondent as CHA only but on later point of time when respondent stated the fact about non-registration as CHA which is also admitted in show cause notice itself that the respondent were not registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Allahabad [2015 (40) S.T.R. 377 (Tri. - Del.), wherein it is held in Paragraph 4 as under; 4. Heard both sides and perused the case records. An amount of ₹ 1,25,850/- was paid by the appellant under Manpower Recruitment Agency Services but subsequently appellant realised that the service tax was not required to be paid under Manpower Recruitment Agency Services. Adjudicating Authority under order dated 28-4-2009, while rejecting the refund claim of the appellant, mentioned that appellant paid service tax under the category Manpower Recruitment Agency Services instead of paying the same under the heading Cargo Handling Services. It was argued by the appellant before the First Appellate Authority that the activities undertaken by the appellant neither falls under Manpower Recruitment Agency Services nor in the category of Cargo Handling Services. While passing final order dated 29-1-2010 no specific order has been passed by the First Appellate Authority whether service provided by the appellant is Cargo Handling Services or Manpower Recruitment Agency Services. After discussing various case laws, First Appellate Authority has held that the plea of the appellant is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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