Service Tax Impact on Freight Forwarders and Logistics Industry

Service Tax On Freight Forwarding &Logistics Industry: Different Business Scenarios

With the decorated announcements of Budget 2016, an undecorated change was introduced affecting the freight forwarding and the logistics industry as a whole. The removal of negative list exemption on inward transportation of goods by vessel now levies such transportation of goods taxable.

In case services of transportation of goods are availed from a domestic entity,service tax needs to be charged by the Indian shipping company, whereas such services being availed from any foreign entity would attract tax liability under the Reverse Charge Mechanism (‘RCM’). This amendment would come in effect from June 1, 2016 and its consequential effects are outlined below.

Change in the tax regime disturbs the whole tax structure relating to various forms of transactions entered by freight forwarders (‘FF’), with customers and shipping lines. Majorly the shipments/transactions can be categorized under following categories

TYPE OF SHIPMENT	LIABILITY TO PAY FREIGHT
	BY CONSIGNOR/SELLER	BY CONSIGNEE/BUYER
Delivered Duty Paid (‘DDP’)	Entire Liability	No
Ex-Works (‘EXW’) shipment	No	Entire Liability
Cost-insurance-Freight (‘CIF’) shipment	Liability to deliver till port of Consignee’s country	Liability for transportation of goods from domestic port to factory/warehouse
Free-on-Board (‘FOB’) shipment	Liability to deliver till port of Consignor’s country	Liability for transportation of goods from foreign port to his factory/warehouse

It is pertinent to note that the scope of CIF and FOB transactions change with inward and outward transactions respectively.

Considering the aforesaid, it is essential to understand the various legs on transaction involved in providing transportation of goods services by vessel.Basis the origin and destination of the transaction,analysis of each transaction from point of view of service tax is encapsulated below:

Inward Shipments – Shipments Coming Into India

INWARD SHIPMENT
TYPE OF SHIPMENT	LEGS OF TRANSACTIONS	SCOPE	ANALYSIS
Delivered Duty Paid (‘DDP’)	a. Between Consignor and Foreign FF	Contract for delivery of goods from outside India to factory/warehouse of consignee in India	No service tax since Consignor and Foreign FF located outside India
	b. Between Foreign FF and Domestic FF	Contract to perform the Indian leg of shipment, on behalf of Foreign FF and not the Consignor or Consignee	Service tax chargeable under Rule-10 of Place of Provision Rules, 2012 (‘POPS’)
Ex-Works (‘EXW’)	a. Between Consignee and Domestic FF	Contract for delivery of goods from outside India to factory/warehouse of consignee in India	Service tax chargeable under Rule10 of POPS, including the amount of inward ocean freight
	b. Between Domestic FF and Foreign FF	Contract to performthe origin leg of transaction in the foreign countryon behalf of Domestic FF and not the Consignor or Consignee	Services performed outside India for Domestic FF in relation to transportation of goods to India, would attract service tax under RCM , under Rule 10 of POPS, payable by Domestic FF
Cost-insurance-Freight (‘CIF’)	a. Between the Consignor and Foreign FF	Contract to deliver goods till the port of importation (India), including respective clearance and freight charges	No service tax payable, since Consignor and Foreign FF located outside India
	b. Between Consignee and Domestic FF	Contract for transportation of goods from domestic port to the factory/warehouse of consignee	Service tax chargeable on entire consideration under Rule-10 of POPS
Free-on-Board (‘FOB’)	a. Between Consignor and Foreign FF	Contract to deliver goods till the port of exportation (foreign port)	No service tax payable, since Consignor and Foreign FF located outside India
	b. Between Consignee and Domestic FF	Contract for transportation of goods from foreign port to factory/warehouse of consignee, including clearance and freight charges	Service tax chargeable on entire consideration, including ocean freight, under Rule-10 of POPS

Outward Shipments – Shipments Going From India

OUTWARD SHIPMENT
TYPE OF SHIPMENT	LEGS OF TRANSACTIONS	SCOPE	ANALYSIS
Delivered Duty Paid (‘DDP’)	a. Between Consignor and Domestic FF	Contract for delivery of goods from India to factory/warehouse of consignee outside India	No service tax payable as per Rule-10 of POPS, since destination of goods is outside India
	b. Between Domestic FF and Foreign FF	Contract to perform the destination leg of shipment in foreign country, on behalf of Domestic FF	No service tax chargeable under Rule-10 of POPS However, tax authorities may take a stringent view and tax the same under Rule-4 of POPS
Ex-Works (‘EXW’)	a. Between Consignee and Foreign FF	Contract for delivery of goods from India to factory/warehouse of consignee outside India	No service tax payable, since Consignee and Foreign FF located outside India
	b. Between Foreign FF and Domestic FF	Contract to perform the origin leg of transaction in India, on behalf of Foreign FF and not the Consignor or Consignee	Services performed in India for Foreign FF in relation to transportation of goods from India, would not attract service taxunder Rule 10 of POPS This transaction would qualify as export of service
Cost-insurance-Freight (‘CIF’)	a. Between Consignor and Domestic FF	Contract to deliver goods till the port of importation (foreign country), including respective clearance and freight charges	No service tax chargeable under Rule-10 of POPS
	b. Betweeen Consignee and Foreign FF	Contract for handling the goods from foreign port till the factory/warehouse of consignee	No service tax payable, since Consignor and Foreign FF located outside India
Free-on-Board (‘FOB’)	a. Between Consignor and Domestic FF	Contract to deliver goods till the port of exportation (India)	No service tax chargeable under Rule-10 of POPS. However, tax authorities may take a stringent view and consider the same taxable under Rule-4 of POPS
	b. Between Consignee and Foreign FF	Contract for handling the goods from Indian port till factory/warehouse of consignee, including clearance and freight charges	No service tax payable since Consignor and FF located outside India

The above table provides an overview of tax incidence on different types of transactions. On understanding of the same the following matter can be examined.

Fixed Rate Contracts

As a general practice, Freight Forwarders and Custom House Agents (‘CHA’) invoice certain actual charges as reimbursements from the customers and separately earn commission/agency fees thereon.In such cases since the cost of freight etc is recovered on an actual basis is disclosed, the element of service tax can be easily calculated.

However, in case ofFixed Rate Contracts (i.e. fixed amount per kg/unit would be charged from customer including all cost and respective margins),it would be difficult to estimate the amount of service tax in the absence of availabilty of specific amounts. This might force the FF to disclose the amount of ocean freight to their customers in order to charge service tax or make their contract price inclusive of service tax.

Margin On Freight – Now Taxable?

One of the most contentious issues being faced by the international freight forwarding industry is the taxability of margin earned on sale and purchase of freight. Typically, freight frowarders buy space/freight from shipping lines in bulk at reduced rates and thereafter, sell them in retail to their customers at higher rates. The differential amount is recognised in the Balance Sheet as trading income on which Service tax authorities are now-a-days asking for service tax. The contention put forth by Freight Forwarding industry is that this activity is trading that shouldn’t be subject to service tax.

With the amendment now making ocean freight taxable to service tax, the margin gained by the freight forwarders on buying and selling of ocean freight would be taxable. This should affect various show cause notices issued by service tax authorities alleging that profit share earned on freight is commission earned for promotion of shipping line’s business.

Also, some freight forwarders used to club a portion of their marginsas ‘freight’, thereby avoiding payment of service tax. This amendment would now tax all such amounts.

CENVAT Credit Becomes Cost

In relation to importers of goods engaged in pure trading activity and not having any output service tax liability under forward charge, the amount of service tax paid of ocean freight for inward transportation of goods would become cost for the importer. The service tax paid although being available as CENVAT credit, however the importer would not have any means for utilizing the same.

Further, add-on responsibility to apply for service tax registration may also arise in case where service of transportation of goods by vessel services are availed from foreign entity.