TMI Blog2023 (12) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... the Original Authority for giving an opportunity to the appellant to adduce evidence as may be found necessary for determining the issue. - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon ble Mr. M. Ajit Kumar, Member (Technical) For the Appellant : Ms. Radhika Chandrasekar, Advocate. For the Respondent : Shri N. Sathyanarayanan, Asst. Commissioner (AR). ORDER : PER MS. SULEKHA BEEVI, C.S. Brief facts are that, based on intelligence that the appellant was not discharging the service tax liability properly for the taxable services rendered by them, the Survey, Intelligence and Research Branch (SIR), Service Tax Commissionerate, Chennai, initiated investigation and called for details from the Appellant. Documents were scrutinized. The Appellant, vide letter dated 20.01.2010, 28.01.2010 and 02.02.2010, furnished the following details: (a) Income from Airlines Incentive from Airlines consists of discount on the rate per kg which they receive from the airlines and also 5% IATA commission received from the airlines. The same is reflected in their Profit and Loss Account under the heading Rebate on Airway Bill . No service tax was paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntives/discounts received by the appellant for buying and selling of cargo space in Airlines/Ships. Being an IATA Agent, the appellant has received Agency commission at 5% and the appellant has discharged service tax on this commission. The same has been noted by the department and no demand has been raised on the commission received. 3.1 (i) The appellant is a service provider under the category of Custom House Agent Service and Cargo Handling Service and has discharged service tax correctly on the consideration received. (ii) Being an IATA agent the Appellant books cargo space with various airlines and receives 5% commission. Service tax has been paid on this commission. (iii) The airline also gives discount/incentive on the freight charges which is a profit earned on purchase and sale of cargo space. Buying and selling of space in airlines does not amount to marketing or promoting the services of airline. (iv) It is a principal to principal transaction without the knowledge of the shipper. Mere sale and purchase of cargo space and earning profit in the process is not a taxable activity. (v) The Appellant retains a portion of the discount and the rest is passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the taxable value. There were several errors in quantification of the demand, which was pointed out by the appellant to the adjudicating authority. The discussions made in para 17.0 of the impugned order, would establish this. 3.5 The Learned Counsel further argued on the grounds of limitation. For the period 2004-2005 2008-2009, the Show Cause Notice has been issued on 20.04.2010. There is nothing brought forth in the SCN that the appellant has suppressed facts with intent to evade payment of service tax. The demand under Business Auxiliary Services (BAS) is made on the incentives received, which has been properly accounted. The appellant did not discharge service tax on incentives received from airlines/shipping lines. There are several decisions in favour of assessee holding that the incentives cannot be subject to levy of service tax. In regard to CHA services, the allegation of short payment is only on the reimbursable expenses. Further, these amounts were also accounted and not hidden or suppressed by the appellant. The appellant did not discharge service tax on GTA services as they were not aware that being a recipient, they have to discharge service tax. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to any activity specified in sub clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development, of prospective customer or vendor, public relation services, management or supervision, and includes Services as a commission agent...... Explanation: (a) Commission agent' means any person who acts on behalf another person and causes sale or purchase of goods or provision or receipt of services, for a consideration. and includes any person who while acting on behalf of another person (i) deals with 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; (iv) undertakes any activities relating to such sale or purchase of such goods or services; 6.3 It is thus the case of the department that the airlines and shipping lines are clients of the appellant and the incentives received is a consideration for promotion or marketing of services provided by the client. The Learned Counsel h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The total amount paid to the Shipping line can be less than what the appellant receives from selling the space or more than that. The price at which it sells space to its customers depends on market conditions. Thus, there could be loss if the appellant is unable to sell the total space it purchased from the shipping line or has to sell at a lower price or profit in a contrary condition. (e) The demand of Service tax is on the differential between the purchase and sale price (or the mark-up) of the ocean freight under the category of Business Support Service (BSS) up to 30-6-2012 and under Section 66B read with Section 66D from 1-7-2012. (f) The demand in the SCN was of Rs. 2,17,22,185/- which was reduced to Rs. 1,93,79,692/- allowing cum-tax benefit. (g) No service tax is leviable on this amount as it is only a case of trading the space on ships and the profit gained there from. (h) The issue stands decided by various benches of Tribunal in the cases of Satkar Logistics [2021-TIOL-543-CESTAT-DEL], Nilja Shipping Pvt. Ltd. [2020-TIOL-461-CESTAT-MAD], Surya Shipping [2019-TIOL-249-CESTATAHM], ITC Freight Services [2021-TIOL-445-CESTAT-BANG], etc. .., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax,Tirunelveli vide F.O.No.41150/2018, the issue was the demand raised on the excess amount collected by the assessee over and above the ocean freight paid by them to liners. The Tribunal observed as under: 6. The issue whether the amount collected over and above the actual cost incurred as freight charges has been analysed by the tribunal in the case of Bax Global India Ltd. Versus Commissioner of Service Tax (supra) under the ocean freight. The tribunal relied upon the decision in the case of Greenwich Meridian Logistics (I) Pvt. Ltd. versus Commr. Of S.T., Mumbai 2016 (43) S.T.R. 215 (tri. Mumbai). The facts revealed that cargo space is booked in accordance with instructions of the exporters for which the appellant receives commission and were discharging service tax liability on such commission received. Ocean freight is the amount paid to the steamer agent (appellant). Acting on behalf of the shipping line which was nothing but profit made from the trading of space or slots for ocean transport containers. Slots may be contracted for by the shipper or its agent with the shipping line through the steamer agent. There is a uni-directional flow of consideration be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractual responsibility to the consignor. Such contracting does not involve a transaction between the shipper and the carrier and the shipper is not privy to the minutiae of such contract for carriage. The appellant often, even in the absence of shippers, contract for space or slots in vessels in anticipation of demand and as a distinct business activity. Such a contract forecloses the allotment of such space by the shipping line or steamer agent with the risk of non-usage of the procured space devolving on the appellant. By no stretch is this assumption of risk within the scope of agency function. Ergo, it is nothing but a principal-to-principal transaction and the freight charges are consideration for space procured from shipping line. Correspondingly, allotment of procured space to shippers at negotiated rates within the total consideration in a multimodal transportation contract with a consignor is another distinct principalto-principal transaction. We, therefore, find that freight is paid to the shipping line and freight is collected from client-shippers in two independent transactions. 13. The notional surplus earned thereby arises from purchase and sale of space and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant does not have any warehouse and the goods are always held in the ICDs or CFS pending clearances. The appellant has been raising bills upon the customers for their services under the following heads: (i) Ocean Freight (ii) Halting charges (iii) Fumigation charges (iv) Customs Documentation charges (v) Bill of lading charges (vi) Transportation charges (vii) Service charges, etc. 6. Under dispute is the amounts which they have collected towards Ocean Freight from the customers which was in many cases higher than the amount which they had paid to the shipping line for the freight. The case of the Revenue is that the difference between the amount of freight actually paid to the shipping line and the amounts collected towards freight from the customers by the appellant should form part of the assessable value, as it cannot be attributed to the freight and it can only be attributed to the services rendered by the appellant which are in the nature of Clearing and Forwarding Agent Services. After examining the books of records and balance sheets of the appellant, demands were raised to charge service tax on this differential amounts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit/mark un which is no more res integra as the same has been decided in catena of decisions. In the case of Tiger Logistics (India) Ltd. V. Commissioner of Service Tax-II, Delhi, (2022) 63 GSTL 337 (Tri. -Del.) supra the tribunal held as under: 9. As far as the differential in ocean freight is concerned, the appellant buys space on ships from the Shipping Line and the Shipping Line issues a Master Bill of Lading in favour of the appellant. In turn, it sells the space to its customers and issues a House Bill of Lading to each of them. The first leg is the contract between the Shipping line and the appellant. The second leg is the contract between the appellant and its customers. Evidently, anyone who trades in any merchandise or service buys low and sells high and the margin is his profit. To earn this profit, he also takes the risk of being unable to sell. In the appellant's case, if the space on the ships which it bought cannot be sold to its customers fully, or due to market conditions, or is compelled to sell at lower than purchase price, the appellant incurs loss. In a contrary situation, it gains profits. This activity is a business in itself on account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the services of any client . 12. In the present case it was recorded that the respondent was already paying service tax on commission received from airlines/shipping lines under business auxiliary service since 10-9- 2004. The original authority recorded that the show cause notice did not specify as to who is the client to whom the respondent is providing service. Original authority considered both the scenario, airline/shipping lines as a client or exporter/shipper as a client. In case the respondent is acting on behalf of airlines/shipping lines as client, it was held that they are covered by tax liability under BAS. Further, examining the issue the original authority viewed that commission amount is necessarily to be obtained out of transaction which is to be provided by the respondent on behalf of the client, that is, the exporters. The facts of the case indicated that the markup value collected by the respondent from the exporter is an element of profit in the transaction. The respondent when acting as agent on behalf of airlines/shipping lines was discharging service tax w.e.f. 10- 9-2004. However, with reference to amount collected from exporters/shippers the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant does not and cannot act as agent in promotion or marketing of the airline and shipping lines. The activity therefore will not fall under BAS as under clause (ii) of section 65(19). 6.13 Again, the other clause invoked by department to allege that the incentives received are taxable under Business Auxiliary Services is clause (vii) of section 65(19). The said clause has already been reproduced. The activity does not fall under clause (vii) also; as this clause is ancillary to clause (ii). If the activity cannot fall under clause (ii) it cannot fall under clause (vii) also. Further, clause (vii) covers activities generally carried out mostly by banks and other financial institutions, and includes that of a commission agent. The appellant is not appointed as commission agent of the airline/shipping line, Appellant is a CHA, working under the Customs Broker Licensing Regulation 2013. As per Section 65 (35) of Finance Act 1994, the Customs House Agent means a person licensed temporarily or otherwise under the regulations made under sub-section (2) of Section 146 of Customs Act. 6.14 From the above and relying on the decisions discussed in para 6.5 to 6.10, we are of the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of taxation to be either the point of raising of invoice [Rule 3(a)] or in a case where the service provider has received the payment even prior to the time stipulated in the invoice, upon receipt of such payment [Rule 3(b)]. In the present case, no invoice is said to have been raised. However, the petitioner confirms that it has, in fact, received lump sum advances corresponding to several initial landmarks in the contract, even prior to the achievement of such landmarks. As per the provisions of Rule 3(b), the entire sum received thus becomes taxable upon receipt and according to Mr. Prabhakar, has been offered to tax. 25. Instead of such determination by application of the provisions of Rule 3, the respondent relies upon the P and L accounts to conclude that the amounts reflected therein have not been offered for service tax. The reporting of income in the P and L being irrelevant for the purposes of determination of service tax payable, the basis of the impugned assessment is erroneous. 26. It is a well settled position that when a statutory provision or rule addresses a specific scenario, such rule/provision is liable to be interpreted on its own strength and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax under GTA services. The penalty imposed on GTA services is set aside by invoking Section 80 of the Finance Act, 1994. 11.1 In the result, the impugned order is modified as under: (i) The demand of service tax, the interest thereon, the penalties imposed under Business Auxiliary Services is set aside entirely. (ii) The demand of service tax, the interest thereon, the penalties imposed under Customs House Agent Services is set aside entirely. (iii) The demand of service tax and interest thereon on Goods Transport Agency Services is upheld. The penalties imposed in this regard are set aside entirely. 12. The appeal is partly allowed in above terms with consequential reliefs, if any. (Pronounced in Court on 13.12.2023) Separate Order (M. AJIT KUMAR) MEMBER (TECHNICAL) Sd/- (SULEKHA BEEVI C.S.) (MEMBER (JUDICIAL) PER CONTRA M. AJIT KUMAR, 13. I have gone through the orders of the learned Member Judicial Ms. Sulekha Beevi C.S. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evance in the more stringent circumstances of a criminal trial, holds that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The section is reproduced below. 106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The broad effect of the application of the basic principles underlying section 106 ibid especially in a case of duty evasion would be that the onus is discharged by the Department if it adduces evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of facts sought to be proved. [See; Collector of Customs, Madras Ors. v. D. Bhoormul [1974] 3 S.C.R. 833] 17. Once a query has been raised by Revenue regarding evasion of duty on specific services rendered by the appellant, adverse inference could be drawn against the appellant if they are not able to provide a satisfactory reply. The initial burden of rebuttal is on the assessee, because the basic facts are within their special knowledge which they have concealed by not filing st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit and Loss statement was submitted by the Appellant to the officers during the investigation showing the income received, as stated at para 4.0 of the SCN. The belief, knowledge and intention of the parties are evidence, and these can be gathered from the actions and internal documents of the appellant s company. It is not denied by the appellant that the document relied upon by the department is a financial statement of the company itself, which has been submitted by them to the departmental officers. It is drawn based on the facts as available in the company s ledgers following acceptable accounting standards. Hence the profit and loss statement to that extent contains valuable information, which may be relevant to the facts in issue and is necessary to be scrutinized as a part of the compliance verification during the investigation especially since statutory returns were not filed. It was for the Appellant to provide the best possible evidence to the departmental officers. Having chosen to give the profit and loss statement and further having not raised any doubts abouts its accuracy before the learned Adjudicating Authority they cannot do so now. In its judgment in Ideal Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal paper book, it was stated as under: 31. The commissioner of Central Excise failed to appreciate that section 65(19)(ii) provides for promotion or marketing of services provided by the client. In the instant case, the appellant is not promoting any sort of service provided by airline in order to attract section 65(19)(ii). The appellant books cargo in any airlines that is appropriate at that particular point of time based on the freight rates, client s preference, route etc. 33. The Commissioner of Central Excise failed to appreciate that in terms of section 65(105)(zzb), taxable services has to be provided to a client by any person in relation to business auxiliary services. In the instant case, the airline is not our client. The incentive cannot be considered as consideration for taxable service. (emphasis added) The relevant provisions of section 65(19) of the Finance Act 1994, (FA 1994) defining BAS, at the relevant time are reproduced below. Business Auxiliary Service means any service in relation to (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved in the promotion or marketing of service provided by the liners who are also not their client, so as to fall under the classification of their activity under BAS. Incentives / concessions are usually offered to intermediaries by the liners with the object of promoting their own business of booking and delivering cargo. Such collaboration leads to a steady supply of customers for the liners services and helps them achieve a faster turnaround time for the vessels and lesser demurrage to be paid to ports etc. Due to this the demand for the particular liners services increases and correspondingly does their business giving them the capacity to withstand competition from other liners. Hence the issue is whether these services by the Appellant are of a similar nature and are classifiable under the category of BAS as per the terms of the contract, for promotion or marketing of service provided by the client-liners. 23. I find that the Hon ble Apex Court in Singapore Airlines Ltd. Vs CIT, [Civil Appeal No. 69646965 OF 2015 / 2022 SCC OnLine SC 1588] examined an issue whether Supplementary Commission in the hands of the IATA travel agent, besides the Standard Commission would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ambit of a contract of agency and its resultant effect concluded that the classification of the difference between the Actual Fare and Net Fare as being a Commission liable to deduction of TDS. 24. The present appeal relates to a case of alleged duty evasion where we are to decide an appeal in which the Appellant has sought to rephrase their earlier averments and have resiled on the acquiescence made regarding the classification of the services involved. However, the specifics of the nature and substance of the activity and how the payments are made or accounted between them, the liners and consignors has not been placed before either the Lower Authority or before us. No contract has been shown except for assertions made based on case laws of this Tribunal, on issues of law. Hence although we are the last fact-finding authority, we are left to decide a mixed question of fact and law while being in the dark about facts relevant to the issue. It is this context that the judgment of the Hon ble Supreme Court in Singapore Airlines (supra) though delivered in a case pertaining to the Income Tax Act, 1961 is relevant. It is a pointer to the fact that the surplus received betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cargo space in advance should normally be lesser than the total charges he collects from the consignors before the liner sails. The mark-up received in the transaction, or a lack of it, depends on market conditions. Thus, theoretically there could be a loss if the person is unable to distribute the total space it booked from the shipping line or has to book the cargo from the consignors at a lower rate in a contrary condition. No Service tax is payable on the mark-up as it is only a case of trading. c) undertakes all the legal responsibility and liability for the transportation of the goods and undertakes all the attendant risks. d) are not involved in the promotion or marketing of service provided by the liners who are also not their client. The transaction with the liners are on a principal to principal basis. Discounts received from the liners are not part of the consideration and hence cannot be taxed. 26. Para 28 of the Apex Court s judgment in Sushilaben Indravadan Gandhi Another v. The New India Assurance Company Limited and Others [Civil Appeal No. 2235 of 2020 / (2021) 7 SCC 151] is relevant to the impugned issue and is reproduced below. 28. It is exceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. The appellant have claimed that the liners are not their clients. Their relationship is that of principle to principle with the liners, without the shippers knowing about it. It has to be stated at the risk of repetition that the expressions 'principal' and 'agent' used in a document are not decisive. The nature of transaction is required to be determined on the basis its substance and not by the nomenclature used. For this the Appellant is required to provide precise data in support of their pleading which are within their knowledge, especially since they also serve as IATA Agents for airlines and get a commission for this activity. The terms 'Agent' and 'principal' are defined by Section 182 of the Indian Contract Act, 1872 which reads as under: 182. An agent is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal . According to this definition, an agent never acts on his own behalf but on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or liners neglect or want of skill, after the goods are handed over to the Appellant and till they reach their destiny, in the terms of the agreement of the consignor with the Appellant. VIII. whether the incentives received by the Appellant from the liners are commission or discounts? IX. whether the amount received by the Appellant and reflected in his books of account is purely the differential between the mark-up of the cost of booking cargo and the profit gained therefrom or for a bundle of activities. 29. It is seen that the Appellant after receiving the SCN have themselves worked out the actual amount of service tax payable on BAS and CHA services and presented a table working out the revised duty payable. They have only challenged the Departments allegations of the incentive received from the liners being commission on sales. Further they have distinguished between the commission regularly received from the Airlines on which service tax was being collected whereas discounts received from the airline are based on the volume of goods exported and no service tax is collected and paid on the same. Hence their grievance was that service tax was sought to be collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving at a conclusion the Court would have to approach the matter from the point of view of a reasonable person of average intelligence. ***** ***** ***** 79. Therefore whether goods are incorporeal or corporeal, tangible or intangible, they must be deliverable. (emphasis added) The Hon ble Apex Court in Commissioner of Service Tax, Delhi Vs Quick Heal Technologies ltd [CIVIL APPEAL NO. 5167 OF 2022 / 2022 (63) G.S.T.L. 385 (S.C.)] has listed out the essential requirement of a transaction for the transfer of the right to use the goods. 52. From the judicial decisions, the settled essential requirement of a transaction for the transfer of the right to use the goods are : (i) it is not the transfer of the property in goods, but it is the right to use the property in goods; (ii) Article 366(29A)(d) read with the latter part of the clause (29A) which uses the words, and such transfer, delivery or supply ... would indicate that the tax is not on the delivery of the goods used, but on the transfer of the right to use goods regardless of when or whether the goods are delivered for use subject to the condition that the goods should be in existence for use; (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves human exertions. The appellant has also referred to their activity as a secondary service rendered to the consignor in their reply to the SCN. The issue hence needs to be examined on facts. Custom House Agent Service (CHA) 32. As seen from the SCN, Revenue was of the opinion that Cargo Forwarding Income and Custom House Agency Charges received by the assessee / appellant are covered under the Custom House Agent Service . Hence the entire Cargo Forwarding Income and the CHA charges including other charges collected while rendering CHA service are covered and chargeable under Custom House Agent Service . The appellant has not challenged the element constituting CHA service sought to be taxed before the Original Authority, except for the taxability of agency charges and due agent collected as these were payments towards handling charges and other charges at the air / sea port and later collected from their clients which is not their income and was not liable to discharge service tax. They recalculated the duty payable minus the said reimbursements and agreed to pay tax as per their calculations. The Original Authority examined the claim of the appellant and rework ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... element constituting CHA service sought to be taxed before the Original Authority, except for the taxability of agency charges and due agent collected as these were payments towards handling charges and other charges at the air / sea port and later collected from their clients which is not their income and was not liable to discharge service tax. The Hon ble Supreme Court s judgment in Union Of India vs M/S Intercontinental Consultants and Technocrats Pvt Ltd [Civil Appeal No. 2013 OF 2014/ 2018 (10) G.S.T.L. 401 (SC)] examined the expression such occurring in Section 67 of the Act. It held that the value of taxable service shall be the gross amount charged by the service provider for such service and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. Hence these stated reimbursable charges are to be examined for facts and if shown to be not part of the gross amount charged as per agreement / contractual obligations, then the amounts need to be deducted from the assessable value before arriving at the tax to be paid, not otherwise. Suppression of Facts and Penalty 35. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be a legally valid levy. The Apex Court in M/S Kranti Asso. Pvt. Ltd. Anr vs Masood Ahmed Khan Ors [(2010) 9 SCC 496] stated as under; 18. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the `inscrutable face of a Sphinx'. The Hon ble Court, in the above judgment summarized and laid down the following principles relating to a 'speaking order': 51. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of Due Process . The summary has been quoted extensively so as to be a guide to quasiJudicial Officers who may have missed the import of the judgment initially and can be guided by the principles stated therein. In the light of the gaps found both in the pleadings and in the impugned order, it is felt that a finding of fact on the lis as expected from the Tribunal is not possible. 36. I find that the impugned order has failed to make a determination of the issues of fact and law in a manner required by the statute and requires to be redetermined afresh to prevent a failure of justice. A decision take ipse dixit at this stage would not help making good law by the last fact-finding Authority. Further it may also be relevant to examine whether the purported activity of the Appellant sought to be classified as BAS was incidental to its activity as a CHA or not. However as regards Service tax paid on Transport of Goods by road service (GTA), the matter has reached a finality as the issue is not con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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