Per Ashok Jindal : The appellant is in appeal along with application for stay.
2. After hearing both sides, we find that appeal itself can be disposed of at this stage. Therefore, with the consent of both the sides, the appeal and stay application are taken up together for disposal.
3. The facts of the case are that the appellant is an international agent booking tickets under the category of air travel agent service. He is providing air tickets to clients both under IATA agents and by way of purchasing by other IATA agents on principal to principal basis. The appellant is an air travel agent and is required to pay service tax on the gross amount collected from the airlines. However, the appellant is discharging their service tax liability under Rule 6(7) of the Rules, 1994, i.e. they are paying service tax at the rate of 0.06% of the basic fare in the case of domestic bookings and at the rate of 1.2% of the basic fare in the case of international bookings . Revenue is of the view that appellant is required to pay service tax on the entire amount of taxable service provided by them. Therefore, proceedings were initiated against the appellant and it is alleged by the department that the appellant has not provided details of their commission received therefore Service tax was demanded on the entire amount for the period 2011-2012. Demand of service tax was confirmed against the appellant along with interest and various penalties under the Finance Act, 1994. Aggrieved from the said order, appellant is before us.
4. Shri Anil Sood, learned Advocate contended on behalf of the appellant that for the earlier period on the identical issue in their own case, this Tribunal has remanded matter back to the adjudicated authority for de novo decision after considering the appellants plea that appellant has paid service tax as per Rule 6(7) of the Service Tax Rules, 1994. Therefore, this matter also be remanded to the adjudicated authority for denovo adjudication.
5. We have considered the submissions made by the learned Counsel for the appellant and also gone through the order of this Tribunal dated 14.10.2014 wherein this Tribunal has observed as under:-
7. The appellant as IATA Agent have two options to discharge service tax liability. The first option is to pay service tax on the gross amount of commission received. However, Rule 6(7) provides another option to them to pay service tax @ 0.6% of the basic fare in respect of domestic bookings and @ 1.2% of the basic fare in respect of the international booking. The word, basic fare is defined in the sub-rule as the part of the airfare on which the commission is normally paid to the Air Travel Agent by the Airlines. The explanation to Rule 6(7) defining the term basic fare clearly indicates that the basic fare for the purpose of this sub-rule is not the gross fare but is the part of the gross airfare charged from the passengers on which the Airlines normally pay commission to the Air Travel Agent. The expression air fare on which the commission is normally paidmeans the portion of air fare, whether 100% or a lesser percentage; on which most of the Airlines pay the commission ignoring the stray cases in which commission is paid on a different part of air fare. The appellants plea is that they have discharged service tax liability under Rule 6(7), only on that part of the gross airfare on which the commission was paid to them by the Airlines and most of the Airlines pay commission only on that portion of fare. In other words, the Appellant plea is that they have paid service tax on the basic fare as defined in the sub-rule. The departments contention, however, is that since the Appellant have not given the break-up of the gross fare into basic fare and the fuel surcharge to enable the department to determine the basic fare component, for the purpose of Rule 6(7), they would not be eligible for the facility of discharge of service tax under Rule 6(7) of the Service Tax Rules and accordingly, the department has determined the service tax liability on the basis of the gross commission. In our view, the term basic fare, in terms of its definition in Rule 6(7), is not the gross fare including fuel surcharge, but is that part of the gross airfare on which the concerned Airlines normally pay the commission to the Air Travel Agent. Therefore, what is relevant for the purpose of section 6(7) is as to on which part of the airfare, the commission was being normally paid by the Airlines to the Air Travel Agents. According to the appellant, the have evidence to prove that they have discharged the service tax liability under Rule 6(7) only on that part of the fare on which the commission was being paid, but this plea has not been considered by the Commissioner. In view of this, the impugned order is set aside and the matter is remanded to the Commissioner for de novo decision after considering the Appellants plea and also our observations in this order. Misc. application for additional evidence is also allowed. In course of de novo proceedings, the Commissioner shall consider the documents produced by the appellant in support of their plea that they have paid service tax on that part of the airfare on which the commission is normally paid by the Airlines. The appeal, stay application as well as misc. application stand disposed of as above.
6. Therefore following precedent decision of this Tribunal, we direct the adjudicating authority to decide the issue afresh following the observations made by this Tribunal in order dated 14.10.2014 and pass appropriate order in accordance with the law.
7. With these terms, appeal as well as stay application are disposed of. ( Dictated and pronounced in the open court ) ( Ashok Jindal ) Member(Judicial) ( R K Singh ) Member(Technical)