Page 151 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] COMMISSIONER OF C. EX. & S.T., LUDHIANA v. CRUISER IMPEX PVT. LTD. 69
“Section 65(105) : ‘Taxable service” means any service provided or to be
provided -
(i) To any person by a custom house agent in relation to the entry
of departure of conveyances or the import or export of goods”
13. It is on record that the DGCEI conducted investigation considering
the respondent as CHA only but on later point of time when respondent stated
the fact about non-registration as CHA which is also admitted in show cause no-
tice itself that the respondent were not registered as a CHA under sub-section (2)
under Section 146 of the Customs Act, 1962 and were actually work through reg-
istered CHA Pooja Travels and later on categorised the respondent as clearing
and Forwarding Agent. Learned Adjudicating Authority is, therefore correct in
holding that the show cause notice ambiguous inasmuch as whether the re-
spondent has contravened the value related to CHA service or related to clearing
and forwarding agent service or to some other service. Further, we find that the
Commissioner has correctly held that service provider can be called as the Cus-
toms House Agent, if they are granted licence temporarily or otherwise, under
CHA Regulations made under Section 142(2) of the Customs Act. It is admitted
fact that respondent is not CHA which is also mentioned in the impugned order.
But we find that the respondent has registered as Customs House Agent by the
service tax Department even though the same is contrary to the provisions of the
Finance Act as evident from the definition of Customs House Agent under Sec-
tion 65(35) of the Act and taxable services under the provisions of Section 65(105)
of the Act. We also find that the respondent has recovered certain amount from
their clients towards service provided by them. This amount needs to be appro-
priated and the same has rightly been done by the adjudicating authority in the
impugned order. Further collection of the extra amount which is various expens-
es incurred for the services like documentation expenses, crane handling charges,
labour charges, weighment expenses and miscellaneous expenses and the service
tax on said debit note was rightly not discharged by the respondent on treating
them as reimbursement expenses. The transportation charges etc. had been paid
by their client and the Service Tax on the said charges had also been discharged
by their client as consignee on reverse charge basis. Therefore, the same cannot
be charged to Service Tax on account of the respondent once again. We also find
that the respondent has erroneously got themselves registered with the Service
Tax Department under the category of Customs House Agent and paid Service
Tax. The erroneous registration will not rendered them liable to pay the service
tax as CHA and service tax cannot be collected from them. In holding so, we
place reliance on the decisions of Shram Seva Associates v. Commissioner of Central
Excise, Allahabad [2015 (40) S.T.R. 377 (Tri. - Del.), wherein it is held in Paragraph
4 as under;
“4. Heard both sides and perused the case records. An amount of
Rs. 1,25,850/- was paid by the appellant under Manpower Recruitment
Agency Services but subsequently appellant realised that the service tax
was not required to be paid under Manpower Recruitment Agency Ser-
vices. Adjudicating Authority under order dated 28-4-2009, while rejecting
the refund claim of the appellant, mentioned that appellant paid service tax
under the category Manpower Recruitment Agency Services instead of pay-
GST LAW TIMES  2nd July 2020  151