TMI Blog2024 (1) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... sis on the need to closely scrutinize the documents between the parties. Tthe primary objection raised by the learned Commissioner in the impugned order is that the appellant did not furnish any supporting documents to prove their case and in the absence of any supporting document he was unable to accept the claim of the appellant that they fulfilled the stipulated conditions. Whereas it is the case of the appellant that all the documents and records were taken over by the Investigating Officers and hence, there was nothing left with the appellant to be furnished before the lower authority. In fact, the appellant has pleaded before us that he has all the documents to substantiate all his claims. In the circumstances, the issue requires to be re-determined afresh to prevent a failure of justice. It is deemed appropriate to set aside the impugned order - case remanded back to the file of the adjudicating authority for de novo adjudication - appeal disposed off by way of remand. - MR. P. DINESHA, MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) Smt. J. Ragini, Advocate for the Appellant Smt. Anandalakshmi Ganeshram, Asst. Commissioner for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibid. and penalties under Sections 76, 77 and 78 of the Finance Act. 2.2 Similarly, Show Cause Notice No. 139/2011 dated 06.04.2011 also came to be issued proposing inter alia to demand Service Tax of Rs.94,34,246/- for the period from October 2009 to March 2010 under proviso to Section 73(1) of the Finance Act, 1994 for Custom House Agent Service, along with the further proposals to charge interest under Section 75 and penalty under Section 76 ibid. 3. It appears that the assessee, upon receipt of the above Show Cause Notice dated 13.04.2010, filed a letter dated 20.05.2010 indicating that they had paid service tax of Rs.15,99,225/- towards Service Tax and interest of Rs.19,46,480/- between 01.04.2010 and 15.04.2010 which was required to be considered. 4.1 A further reply dated 19.08.2010 was also filed by them wherein the assessee appears to have explained that they were rendering the service of clearance of import and export cargo, that in addition to the service charges, they had incurred expenditures like (a) customs expenses (b) unloading and loading cooly (c) harbour sundry and delivery expenses (d) import permit (e) PHO and PQFS conveyance and (f) application cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Agents Licensing Regulations, 2004; the CHA would act as a pure agent when they make payment to third party by collecting and effecting payment on actual basis; the CHA would receive and use the goods or services in their capacity as pure agent of the recipient of services, they would arrange the availment of the associated services for clearance of the goods and hence, the recipient of services, namely, the importer/exporter, as the case may be, is the actual person liable to make payment to third-party as per Regulation 13(a) (supra) and reimburse those expenses. 5. The assessee also appears to have filed their reply dated 27.06.2011 to the Show Cause Notice dated 06.04.2011 wherein they have pleaded that their submissions vide the earlier reply dated 19.08.2010 may be treated as their submissions for the said proceedings as well, and the appellant has relied on the following orders: - i. M/s. Bax Global India Ltd. v. Commissioner of Service Tax, Bangalore [2008 (9) S.T.R. 412 (Tri. Bang.)] ii. GAC Shipping (India) Pvt. Ltd. v. Commissioner of C.Ex. and Cus., Cochin [2008 (9) S.T.R. 524 (Tri. Bang.)] iii. APCO Agencies v. Commissioner of Cus. and C.Ex., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case would the service provider issue any bill/receipt and the appellant had always discharged the Service Tax. 9.2 Moreover, it is their contention that it is the clear position of law that the reimbursable expenses were not exigible to Service Tax and relied on the judgement of the Hon ble High Court of Delhi in Intercontinental Consultants and Technocrats Pvt. Ltd. vs. U.O.I. Anr. [2013 (29) S.T.R. 9 (Del.) / 2012-TIOL-966- HC-Del-ST]. 9.3 With regard to GTA Services, she would submit that the appellant had paid Service Tax of Rs.25,31,099/- along with interest of Rs.4,58,032/- and hence, the demand again would not survive. 9.4 With regard to the Service Tax demand on business auxiliary services, it is submitted that the appellant did not collect any Service Tax from the liners, but however, the Service Tax demanded was computed on cum-tax basis, on which the appellant had also remitted interest of Rs.1,93,388/- which was not liable to be taxed since the same was not received for providing any service to the shipping lines, but received as an incentive. 9.5 She further invited our attention to the Circular No. 119/13/2009 dated 21.12.2009 issued by the Central B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 in Service Tax Appeal No. 43 of 2007 and anor.) in her support. 11. After hearing the rival contentions, we find that the following issues emerge for our consideration: - (1) Whether the appellant is liable to pay Service Tax in respect of Custom House Agent (CHA) Service? (2) Whether the demand of Service Tax under Goods Transport Agency (GTA) Service is in order? (3) Whether the appellant is liable to pay Service Tax in respect of Business Auxiliary Service? and (4) Whether the invocation of extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994 is justified? 12. The scope of these appeals revolves around the appellants contention that the Order-in-Original relied upon Rule 5 which was not tenable as per the judgement of the Hon ble High Court of Delhi in Intercontinental Consultants and Technocrats Pvt. Ltd. (supra) holding Rule 5(1) to be ultra vires the parent Act, and that as per C.B.E.C. Circular No. 119/13/2009-ST dated 21.12.2009, reimbursed charges are eligible for exclusion. That the charges were paid to service providers who do not issue any bills/receipts, accordingly they had correctly discharged their service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity as pure agent of the recipient of service; (iii) the recipient of service is liable to make payment to the third party; (iv) the recipient of service authorises the service provider to make payment on his behalf; (v) the recipient of service knows that the goods and services for which payment has been made by the service provider shall be provided by the third party; (vi) the payment made by the service provider on behalf of the recipient of service has been separately indicated in the invoice issued by the service provider to the recipient of service; (vii) the service provider recovers from the recipient of service only such amount as has been paid by him to the third party; and (viii) the goods or services procured by the service provider from the third party as a pure agent of the recipient of service are in addition to the services he provides on his own account. Explanation 1. - For the purposes of sub-rule (2), pure agent means a person who - (a) enters into a contractual agreement with the recipient of service to act as his pure agent to incur expenditure or costs in the course of providing taxable service; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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