TMI Blog2023 (5) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. Brokerage and special commission/incentive - to be an income received in the activity of trading of freight space in various shipping lines, or not - HELD THAT:- Reliance placed in the case of Karam Freight Movers [ 2017 (3) TMI 785 - CESTAT NEW DELHI ] where it was held that The surplus earned by the respondent arising out of purchase and sale of purchase and sale of space and not by acting for client who has space or not on a vessel. It cannot be considered that the respondents are engaged in promoting or marketing the services of any client. - demand do not sustain. Penalty - Extended period of limitation - HELD THAT:- It is observed to be an apparent fact that the appellant was otherwise discharging the liability for providing the chargeable services and was admittedly filing the regular ST-3 returns. Once it is held that there was no liability upon the appellant to be discharged as far as the markup charges are concerned there remains no reason with the Department to invoke the extended period of limitation while issuing the impugned Show Cause Notice. For want of intention to evade duty there can be imposed no penalty upon the appellant. Appeal allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst Indian Customs Station are exempted. Ld. Counsel further submitted that the appellant pays charges for space booking to different shipping lines / airlines and later on sells such place to the exporters / importers at a slightly higher amount. The difference between amount paid by the appellant to shipping lines / airlines and the amount recovered by the appellant from the customers is actually the markup charges collected by the appellant, hence, is not against providing the service of business support as is alleged by the Department. Ld. Counsel has also mentioned that the issue of this appeal has already been decided vide catena of decisions. ld. Counsel had laid reliance upon following decisions:- (i) Final Order No. ST/A/52258/2017-CU (DB) Dt-07.03.2017 in appeal to ST/2644/2012-ST (DB), CESTAT, Delhi in Commissioner of service tax appeal Vs Karam Freight Movers (ii) Commissioner of Service Tax New Delhi Vs. Continental Carries 2017-TIOL-3964-CESTAT-DEL. (iii) Commissioner of Service Tax Chennai Vs Supply Chain Logistics Pvt. Ltd. - 2118-TIOL-3118-CESTAT-MAD. The departmental appeal also stands dismissed (iv) Marinetrans India Pvt. Ltd. Vs Commissioner Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the airline incentives. Unless the space is booked by the appellant specifically for a client the components of the Business Auxiliary Service do not come into play. In the instant case, there is no such allegation and the appellants are booking the space for their own trading activities. In these circumstances demand of service tax under BAS cannot be sustained and the same is set aside. 4.3 . The next issue relates to the income under the head of airline commission and airline incentive sought to be text under BAS. It is seen that the said income is generated during the course of booking of bulk cargo by the appellant with the airline. The appellant have received the incentive and commission from the airline. The appellants are engaged in buying and selling of space in the airline and depending on the volume of the space bought by the appellant from the airlines they received the commission/incentive. The appellants are not buying and selling space on the airline on behalf of their client but on their own behalf. To consider the activity of buying and selling the taxable activity under the head of BAS, the same should be done on behalf of the client. Thus, if the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and as a procured 4 ST/471/2009-DB from shipping lines. The surplus earned by the respondent arising out of purchase and sale of purchase and sale of space and not by acting for client who has space or not on a vessel. It cannot be considered that the respondents are engaged in promoting or marketing the services of any client. 9. We also observe that there has been a circular of the CBEC, the relevant para whereof is as follows:- 2.1 The freight forwarders may deal with the exporters as an agent of an airline/carrier/ocean liner, as one who merely acts as a sort of booking agent with no responsibility for the actual transportation. It must be noted that in such cases the freight forwarder bears no liability with respect to transportation and any legal proceedings will have to be instituted by the exporters, against the airline/carrier/ocean liner. The freight forwarder merely charges the rate prescribed by the airline/carrier/ocean liner and cannot vary it unless authorized by them. In such cases the freight forwarder may be considered to be an intermediary under rule 2(f) read with rule 9 of POPS, since he is merely facilitating the provision of the service of trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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