Custom, Excise & Service Tax Tribunal
M/S Trade Wings Ltd vs Cce & St, Jaipur I on 3 January, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 03/01/2017. DATE OF DECISION : 03/01/2017. Service Tax Appeal No. 4183 of 2012 [Arising out of the Order-in-Appeal No. 191 (RDN) ST/JPR-I/2012 dated 11/09/2012 passed by The Commissioner (Appeals), Central Excise & Customs, Jaipur I.] M/s Trade Wings Ltd. Appellant Versus CCE & ST, Jaipur I Respondent
Appearance Shri Jitendra Singh, Advocate for the appellant.
Shri Ranjan Khanna, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 50047/2017 Dated : 03/01/2017 Per. B. Ravichandran :-
The appellant is aggrieved by the order dated 11/09/2012 of Commissioner (Appeals I), Jaipur. The appellants are engaged in providing air travel service by selling airline tickets to various customers. They were registered with the Department under the category of Air Travel Agency Services and were discharging service tax. The dispute in the present case relates to non-payment of service tax on a portion of consideration received by them when they sold tickets purchased from another travel agent. Proceedings were initiated against the appellant to confirm the service tax liability on such portion under the category of Business Auxiliary Service considering that they were promoting business of another travel agent and were obtaining commission on that. The demand was confirmed and penalties were also imposed by the lower authorities.
2. The learned Counsel for the appellant submitted that they were registered with the Department as air travel agents and were discharging service tax regularly. Wherever they did not have sufficient stock of tickets, they used to purchase tickets from another travel agent and sell the same to the traveling public. Relying on the clarification issued by the Commissioner, Service Tax, Delhi it is submitted that sub-agents who are not getting commission from airlines and also not making out tickets directly from airlines are not required to collect service tax or pay service tax to the Department, they did not pay service tax wherever they issued tickets purchased from another travel agent.
3. The learned Counsel also contested the demand on time bar as the Jurisdictional Commissioner earlier clarified that they are not liable to pay service tax when acting as sub-agent.
4. The learned AR reiterated the findings of the lower authorities. He submitted that during the material time air travel agents providing service to the customers were liable to pay tax under that category. The demand in the present case is relating to commission received from another travel agent to promote their business with traveling public.
5. We have heard both the sides and perused appeal records. The admitted facts are that the appellants are registered with the Department as travel agent and were discharging service tax under the category of travel agent service. The dispute in the present case relates a part of their activity wherein they get tickets from the another travel agent and sell to traveling public. The commission/profit earned in such transaction is sought to be taxed under the category of Business Auxiliary Service. We note that there is no arrangement either by contract or by otherwise between another travel agent and the appellant for promoting the business of another travel agent. The traveling public is getting only ticket with no identity linking the same to another travel agent. In such situation, it could not said that the appellant is promoting the business of another travel agent, in their capacity as sub-agent. No such fact has been established in the impugned order by the lower authority. The emphasis by lower authority is only on the point that when they are not selling tickets of airlines directly they are liable to service tax under Business Auxiliary Service. We find such summary assumptions cannot be sustained. It is not established that the appellants are acting as commission agent for another travel agency. Evidence to that effect has not been adduced by the lower authorities. The transaction is only of sale and purchase of tickets by the appellant.
6. In view of the above discussion and analysis, we find the impugned order is not sustainable. The same is set aside. The appeal is allowed.
(Order dictated and pronounced in open court.) (S.K. Mohanty) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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4ST/4183 of 2012