Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/CASE LAW/2016-17/3075

Whether value of ocean freight would be included in the taxable value of composite services when ocean fright is exempted from levy of service tax?

Case:APL LOGISTICS (INDIA) PVT. LTD. Vs COMMISSIONER OF C. EX., CHENNAI-III
 
Citation:2014 (36) S.T.R. 1310 (Tri. - Chennai)
 
Brief Facts:The appellants are registered with the Service Tax authorities for rendering taxable services under Business Support Service, Business Auxiliary Service and Goods Transport Agency Service. In the present case, the appellants were providing mainly distribution of logistics support service to exporters/importers located in India.
The issue relates to as to whether value of ocean freight, advance manifest charges, bunkering and currency adjustment charges would be included in the taxable value. A show cause notice was issued proposing demand of tax of Rs. 1,47,15,967/- along with interest and penalty for the period from June, 2006 to December, 2008. The adjudicating authority confirmed the demand of tax along with interest and penalty.
Appellant’s Contention:The amount involving 95% of the demand is raised on ocean freight which is not taxable service. In this context, he relied on the following decisions :-
(a)        Agility Logistics Pvt. Ltd. v. CST, Chennai - 2013-TIOL-162-CESTAT-MAD = 2014 (35)S.T.R. 858 (Tri.-Chen.)
(b)        Gudwin Logistics v. CCE, Vadodara - 2010 (18)S.T.R. 348 (Tri.-Ahmd.).
He drew the attention of the Bench to break-up of demand as ocean freight Rs. 1.16 crores, Bunker adjustment factor Rs. 25.15 lakhs and currency adjustment factor Rs. 5.82 lakhs approximately.
Respondent’s Contention:It is a composite service and the pre-dominating factor is logistics support service, which is covered under Business Support Service. He further submits that the appellant had not placed the invoice on ocean freight before the adjudicating authority. He submits that invoices contained in this appeal are related to the year 2010, whereas the period of dispute in this appeal is 2006-08. It is contended that the adjudicating authority rightly confirmed the demand of tax as per clause (b) of Section 65A(2) of the Finance Act, 1994.
 
Reasoning of Judgement: The adjudicating authority observed that it is a composite service including ocean freight, etc. It is also observed that the appellants are engaged in the managing, distribution and logistics, the cargo handling is only incidental to logistics and therefore, service provided by the appellant would be appropriately classifiable under “Business Support Service”. The Tribunal in the case of Agility Logistics Pvt. Ltd. (supra), held as under : -
“21. In the case of consideration received for freight we are of the prima facie view that ocean freight was not liable to Service Tax. While there are specific entries in Finance Act, 1994 levying tax on transportation of goods by road, rail, aircraft, pipeline, etc., there is no entry levying tax on transportation by sea. It has to be reasonably presumed that this is kept outside the tax net and it cannot be taxed under a general entry like Business Support Services. Further, it appears that such services are rendered in respect of export cargo.”
 
In the case of Gudwin Logistics (supra), the Tribunal held as under : -
“4………….At the same time we also take note of the fact that substantial portion of the total amount collected by the appellants relates to ocean freight which itself is not liable to Service Tax at all. The decision of the Tribunal in the case of DHL Lemuir Logistics Pvt. Ltd. relating to air freight is applicable to the facts of this case also and therefore the decision of the Commissioner that ocean freight also should be included for the purpose of Service Tax levy on the appellants prima facie appears to be wrong. Having regard to the nature of service provided by the appellants and also the decision of the Hon’ble High Court of Punjab & Haryana, Board’s instructions and decision of the Tribunal - Bangalore Bench, we find that the appellants have made a strong prima facie in their favour. In view of the fact that there is a clear decision that freight element cannot be included for Service Tax, substantial portion of the demand does not appear to be sustainable. In view of the fact that the decision of the Hon’ble High Court of Punjab & Haryana was not available to the Commissioner when the impugned order was passed and also the decision of the Bangalore Bench cited above was also not available to him, we consider it appropriate to set aside the impugned order and allow the stay petition and remand the matter to the Commissioner for fresh consideration after giving opportunity to the appellants to present their case.”
 
Ld. advocate submitted that they have mentioned ocean freight separately in their invoices. The sample invoice of 2010 placed by the appellant would show that “ocean freight” was mentioned separately. It is seen from the adjudication order that the ocean freight, advance manifest charges, bunkering charges (fuel adjustment charges due to variation in prices) and currency adjustment charges (due to fluctuation of foreign exchange rates) are all integral part of payments, which are remitted to the shipping lines.
In view of the above discussion, they find that the Service Tax is not leviable on ocean freight. It is appropriate that the adjudicating authority should examine all the issues in the light of the above decisions and appellants would be directed to produce documents for proper verification.
Accordingly, they set aside the impugned order and the matter is remanded back to the adjudicating authority to decide afresh after considering the submissions of the appellant in accordance with law. The appeal is allowed by way of remand.
 
Decision:The gist of the case is that the assessee was providing mainly distribution of logistics support service to exporters/importers located in India. Assessee has charged Ocean freight in his invoices which was exempted from levy of service tax. Department has issued show cause notice on the ground that the It is a composite service and the pre-dominating factor is logistics support service, which is covered under Business Support Service. Hence as assessee is not eligible for exemption related to ocean freight.
The Tribunal has set aside the order of original authority and remanded the matter to original authority to examine issues in light of documents

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com