TMI Blog2023 (12) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... ing services connected to travel by air, a travel agent would render air travel agent services, which services cannot be said to be for promotion or marketing for the airlines - in view of the aforesaid decision of the Larger Bench of the Tribunal in Kafila Hospitality, service tax could not have been demanded from the appellant under BAS on the incentives that were received from CRS Companies and Air Lines on sale of tickets. Non-payment of service tax under BAS on the service charges received by the appellant from clients for visa consultation - HELD THAT:- The services rendered by the appellant are not covered under the definition of BAS as the appellant is not involved in promotion and marketing or sale of any goods or service nor is the appellant providing any customer care service on behalf of the client or procuring goods or services which are inputs for the client. While providing such services, the appellant does not act as an agent of the embassies or of the individuals who require the assistance in obtaining VISA and, therefore, such services are not provided on behalf of anyone. The activities of the appellant would not be covered under BAS - service tax could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, the appellant is not involved in promotion or marketing or sale of any goods or service - There is force in the submission advanced by the learned counsel for the appellant. When the aforesaid services have already been taxed under air travel agency service, the incentives received from Miscellaneous Receipts arising out of the same transaction cannot be taxed under BAS. The confirmation of demand, therefore, deserves to be set and is set aside. Denial of CENVAT credit - Credit denied on the ground that invoices bare address as 1400, Modi Tower, 98 Nehru Place which is the address of the registered premises and not 110, Modi Tower, 98 Nehru Place which is the address of the travel agency division of the appellant specified in ST-2 form - HELD THAT:- There is no dispute on receipt of service and payment made. According to the appellant, the issue of PAN based registration has been decided in favour of the appellant meaning thereby that registration of the service provider is not in dispute. Thus, once registration of service provider and rendition of service and payment thereof is not in dispute, mere mention of the wrong address is a procedural defect and CENVAT c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant filed a detailed reply dated 02.05.2014 to the show cause notice and denied the allegations. 7. The department issued a second show cause notice dated 19.05.2014 to the appellant proposing to raise a demand of service tax of Rs. 6,42,169/- on the incentives received from Airlines, visa consultation, medi-claim, Foreign Exchange transaction and miscellaneous receipts for the year 2012-13. 8. The appellant filed a detailed reply to the show cause notice and denied the allegations. 9. The Additional Commissioner, by order dated 15.06.2016, confirmed the demand proposed in the two show cause notices with interest and penalty and the appeal filed by the appellant before the Commissioner (Appeals) has been dismissed by the Commissioner (Appeals) by order dated 28.11.2016. 10. The following six issues arise for consideration in this appeal: (i) Non-payment of service tax under the category of business auxiliary service BAS on the incentives received from the Central Reservation System Companies CRS Companies and Airlines on the sale of tickets; (ii) Non-payment of service tax under the category BAS on the service charges received by the appellant from c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through Amadeus/Galileo/Abacus system. Can it, therefore, be said that the travel agent is engaged in the promotion of a particular CRS system. xxxxxxxxxxx 65. Mere selection of software or exercising of a choice would not result in any promotional activity. The Department has not pointed out at any activity undertaken by an air travel agent that promotes the business of the CRS Company. 66. The Department has also contended that in the present case, the demand under BAS is justified as three parties are identifiable, namely, the CRS Company, travel agent and a passenger. 67. The passenger cannot be deemed to be an audience for promotion of the business of CRS Companies, for the passenger can neither book directly through a CRS Company nor can a passenger be influenced by any travel agent to book through a particular CRS Company. xxxxxxxxxx 70. The two competing entries are air travel agent service and BAS . It would be seen from the definition of air travel agent that it includes all services connected with or in relation to the booking of passage for travel by air. The services in question are booking of airlines tickets and for achieving a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance in obtaining VISA and, therefore, such services are not provided on behalf of anyone. The activities of the appellant would not be covered under BAS. 18. In this connection reliance can be placed on a decision of the Tribunal in Good Wind Travels Pvt. Ltd. vs. Commissioner of C. Ex., Ahmedabad 2013 (31) S.T.R. 598 (Tri.- Ahmd.) wherein it was held that such a service would not be taxable. The relevant portion of the decision is reproduced below: 5. It is undisputed fact in this case that the appellant is only providing assistance in visa and passport related work to the individuals and if that be so, the Board Circular dated 20-4-2011 will cover the issue in favour of the assessee, which we quote:- Circular No. 137/6/2011-S.T., dated 20-4-2011 Subject: Assistance provided for processing visa applications - Regarding. An issue has been brought before the Board, seeding a clarification as to whether service tax liability would arise on the assistance provided by visa facilitators, to individuals directly, for processing of visa applications. 2. The same has been examined. Assistance provided by a visa facilitator, for obtaining visa, to a visa appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liable to be set aside and we do so. Impugned order is set aside and appeal is allowed. (emphasis supplied) 19. In view of the aforesaid, service tax could not have been demanded from the appellant under BAS on the service charges received by the appellant from clients for visa consultation. Third Issue 20. This issue is regarding non-payment of service tax under BAS on the incentives received from Mediclaim Insurance Companies. Learned counsel for the appellant submitted that no service tax would be payable under BAS as the services rendered by the appellant are not covered under any of the clauses of BAS. 21. The appellant arranges for medical insurance of clients from various Insurance Companies which have tie ups with the appellant. The policies are issued in the names of passengers and the premium charged by Insurance Companies is recovered from passengers without any markup. The Insurance Companies provide the mediclaim insurance policies to the individuals. The Insurance Companies make payment of incentives on their own as per their policy on which the appellant has no control. The appellant merely receives incentives from the insurance companies and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand on the incentives received by the appellant from Foreign Exchange brokers is the same as that for confirmation of the demand on service charges received by the appellant from clients for Visa Consultation. The confirmation of this demand, therefore, would also have to be set aside. Fifth Issue 27. This issue relates to non-payment of service tax under the category BAS on the incentives received from Miscellaneous Receipts. The demand under the head Miscellaneous receipts corresponds to the revenue received on the account of the following activities: a. Railway tickets b. CRS Companies c. Hotel accommodation 28. Learned counsel for the appellant submitted that the aforesaid services have already been taxed under air travel agency service and so any consideration arising from the same transaction cannot be taxed under a different category. Learned counsel for the appellant also submitted that no service tax is payable under BAS as the services rendered by the appellant are not covered under any of the clauses of BAS. According to the learned counsel for the appellant, the appellant is not involved in promotion or marketing or sale of any goods or service. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner of Central Excise having jurisdiction over factory of manufacturer shall allow credit of duty on inputs/capital goods ignoring minor procedural lapses in filing the declaration or in the invoice/document based on which credit is taken, emphasis was placed on this circular in case of Commissioner of Customs, Meerut v. Triveny Engineering Industries Ltd. - 2004 (177) E.L.T. 211 (Tri.-Del.), wherein, it was held, credit is not deniable on ground of procedural defects. ***** 7. Having considered the rival contentions, I find that as there was no lapse in payment of duty or tax and filing Service Tax return by the appellant the other premises/units also belong to the appellant from where the output services are rendered. The input services to which the invoices in dispute relate are utilized in rendering output taxable service. The appellant have made payment of input service along with the Service Tax charged by the service provider. The appellant have maintained proper records in normal course of business, and have disclosed the credit taken regularly in periodical returns. Thus I hold that the appellant is entitled to avail Cenvat credit, disputed by R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
