TMI Blog2023 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... MBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Bharat Raichandani, Advocate, with Ms. Puloma Dalal, Chartered Accountant, for the Appellant Shri Anand Kumar, Additional Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Original No. 28- 31/MA/Commissioner/Belapur/2020-21 dated 25.09.2020 passed by the Commissioner of GST Central Excise, Belapur. By the impugned order, the Commissioner has held as follows:- ORDER 6.1 As regards the first show cause notice bearing No. ST/Audit III/PL/SCN-EMU/Commr/Gr.24/04/15-16 dated 22.04.2015 issued for the period from April, 2009 to March, 2014 - a) I confirm the demand of Service Tax amounting to Rs. 16,46,32,093/- (Rupees Sixteen Crores Forty Six Lakhs Thirty Two Thousand Ninety Three only) under the provisions of section 73(2) of the Finance Act, 1994. b) I direct the noticee to pay interest at appropriate rate as provided under section 75 of the Finance Act, 1994 on the demand confirmed at sr. no. 6.1(a) above c) I impose penalty of Rs. 16,46,32,093/- under the provisions of section 78 of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994, read with Section 65(19) ibid and they should not be held liable for payment of Service Tax at appropriate rate on their aforesaid activities, during the years April 2009 to March 2014 in terms of Section 66/66B of the Chapter-V of the Finance Act, 1994; Service Tax amounting to Rs. 16,46,32,093/- (Rupees Sixteen Crores Forty Six Lakhs Thirty Thousand Ninety Three only) (inclusive of Education Cess and Secondary Higher Education Cess) on the aforesaid Business Auxiliary Services , rendered during the year October, 2009 to March, 2014, as detailed above, should not be demanded and recovered from them under Section 68 read with proviso to Section 73(1) of the Act read with Rule 6 of the Service Tax Rules, 1994. b. Interest at appropriate rate on the Service Tax demanded, as mentioned at clause (ii) above, should not be demanded and recovered from them under Section 75 of the Act. c. Penalty should not be imposed for not disclosing true and correct information in respect of the value of the aforesaid services on which no Service Tax was paid in the half yearly returns by the due dates under Section 77 of the Finance Act, 1994. d. Penalty should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on them under Section 77 of the Finance Act, 1994 for the contraventions of provisions of Service Tax Rules and Finance Act, 1994 as amended; 2.4 All three show cause notices have been adjudicated by the impugned order. Aggrieved by the impugned order, appellant has filed this appeal. 3.1 We have Heard Shri Bharat Raichandani, Advocate with Ms. Puloma Dalal, Chartered Accountant, for the appellant and Shri Anand Kumar, Additional Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- The issue involved in the present case is covered by the decision rendered by the Delhi Bench in appellant s own case vide final order reported at [2017-TIOL-4246- CESTAT-DEL]. Accordingly he submits that following the ratio of the above decision, appeal filed by the appellant should be allowed. He would also rely upon the decisions in the case of Bhatia Shipping Pvt. Ltd. [2022-TIOL-116-CESTAT-MUM] and Greenwich Meridian Logistics (I) Pvt. Ltd. [2016 (43) STR 215 (Tri.-Mumbai)] and the appeal against this decision of the Tribunal was dismissed by the Hon ble Bombay High Court. 3.3 Arguing for the Revenue:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h goods or services or documents of title to such goods or services; or (ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; Since the services rendered by the appellant are covered by clause (iv), these services to be the service of procurement of space on the vessel needs to be classified under this category and should be subject to levy of tax. The present case is distinguishable from the decisions relied upon by the appellant. Reliance is placed upon the decisions in the case of Bax Global India Ltd. [final order No. 42113/2017 dated 18.09.2017 of Chennai Bench] and Karam Freight Movers [final order No. 52258/2017 dated 07.03.2017 of Delhi Bench]. Accordingly he prays for dismissal of appeal. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument. 4.2 The preliminary objection raised by learned Authorised Representative cannot be sustained as the Chartered Accountant in whose name the Vakalatnama has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l examined the tax liability of the appellants with reference to considerations received as freight or mark up on freight. The service tax liability was held to be not applicable in such arrangement. 4.6 In the case of Greenwich Meridian Logistics (I) Pvt. Ltd. [2016 (43) STR 215 (Tri.-Mumbai)], the Tribunal has specifically observed as follows:- 11. Slots may be contracted for by the shipper or its agent with the shipping line through the steamer agent. Implicit is a unidirectional flow of consideration because the space belongs to the shipping line. Steamer agent or agent of shipper may earn commission in such a transaction. Leaving that situation aside, the contention of the appellant is that it is a multi-modal transport operator' which entails a statutorily assigned role in cross-order logistics. According to section 2 of the Multi-modal Transportation of Goods Act, 1993 (m) multimodal transport operator means any person who- (i) concludes a multimodal transport contract on his own behalf or through another person acting on his behalf; (ii) acts as principal, and not as an agent either of the consignor, or consignee or of the carrier partici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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