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TMI Blog2025 (1) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. ST/30253/2018 against OIA dt.05.12.2017, vide which the Commissioner (Appeals) has upheld the tax demand, interest and penalty imposed under section 76 but set aside the penalty imposed under section 77; and in Appeal No. ST/30082/2022 against OIA dt.21.08.2019, whereby the Commissioner (Appeals) has upheld the tax demand, interest and penalty imposed under section 76 but set aside the penalty imposed under section 77. As the issue is common in both these appeals, we intend to take these appeals together for disposal. 2. The issue, in brief, is that the appellants are engaged in providing 'Clearing & Forwarding Agency (C&F)' services to various customers by entering into agreement for clearance of export goods by sea. For the said pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the markup is proper and confirmed the demand. The Adjudicating Authority has also observed that the markup value received by the appellant cannot be considered as income since the same was collected towards provision of service by the appellant as agreed upon. The markup value shall be considered as consideration towards provision of service to their customer and not income. 4. In the impugned order, the Commissioner (Appeals), relying on the judgment in the case of Bizsolindia Services Pvt Ltd Vs CCE, Pune-II [2016 (43) STR 622 (Tri-Mumbai)], held that the demand is sustainable. 5. Learned Advocate for the appellant, inter alia, took the ground that the classification of the markup recovered on ocean freight as C&F service by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why the markup should be fastened to one of the services viz., C&F services or the GTA services. The only ground is that these are in relation to their overall services provided to their client. However, as can be seen, this markup is clearly in relation to ocean freight which they have purchased and later on sold to their client and charged some extra amount as markup, in addition to the original freight paid to the shipping line, etc. 9. We find that this Bench has already considered all these aspects and inter alia, held that the claim of the appellant that they are trading in container space is correct and set aside the demand raised on the identical issue of facts for the period prior to 2012. In fact, even for subsequent period al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chargeable to Service Tax cannot be fastened to some other activities without having clear evidence that there was some service provided by them in integrated manner. Therefore, the profit earned on account of trading in space cannot be added to the gross value of other services without bringing sufficient evidence to support that this was a ploy adopted by the appellant to charge towards the CFS charges by suppressing the actual value of CFS. No such specific charges have been made out in the SCN. 11. Further, we find on the same issue for the period 2008-09 to 2010-11, as also for the period, as also for the period 2013-14 has already been decided by this Bench, holding that these markups are nothing but trading profit and therefore, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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