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2024 (3) TMI 859 - CESTAT CHANDIGARHLevy of Service tax - Business auxiliary service - commission retained/earned towards the service rendered by them to the co-GSA/IATA - extended period of limitation - HELD THAT:- On going through the explanation given under Section 65(19) commission agent means a person who acts on behalf of as a person and causes sale or purchase of goods, provision or receipt of services, for a consideration and includes any person who does some of the things, while acting on behalf of another person. It is alleged that the appellants are commission agents for their co-operators and are earning commission for the same and therefore they are rendering business auxiliary service to their co-operators. However, the practice of the trade, if observed closely, would indicate that the appellants are buying tickets on behalf of their customers/clients and not definitely on behalf of their co-operators. The entire surmise in the show cause notice is ill conceived. The relation between the appellant and the co-operators appears to be one of the principal-to-principal basis. If at all the appellants are presumed to be acting on behalf of somebody else for a commission, it is their customers/clients for whom they are buying tickets from other GSA/IATA operators. However, this is not the allegation in the show cause notice. Therefore, there are no principal and agent relationship between the other GSA/IATA operators and the appellants. Tribunal had an occasion to deliberate on the very same issue wherein Tribunal came to the conclusion that purchase and sale tickets for a commission between two agents operating under GSA/IATA does not amount to rendering any service exigible to service tax. Tribunal in the case of C.S.T., SERVICE TAX- AHMEDABAD VERSUS M/S OM AIR TRAVELS PVT. LTD. [2019 (6) TMI 1022 - CESTAT AHMEDABAD] held that In the fact that the appellant is purchasing the ticket on discounted price and selling the same at higher price to the customer, the difference, in our view, is a trade margin during the process of sale and purchase of the tickets. Therefore, we do agree with the contention given by the Ld. Commissioner (Appeals). Accordingly, the demand raised on trade margin of purchase and sale of the tickets shall not be taxable. Invocation of Extended period of Limitation - HELD THAT:- There is considerable force in the arguments of the Ld. counsel for the appellants; revenue did not bring about any evidence to allege suppression etc. with intent to evade payment of service tax; moreover, it is found that when regular audits were conducted, revenue having raised the issue in subsequent audits, cannot take recourse to invoke extended period. The inevitable conclusion one can draw is that the appellants are not rendering any “Business Auxiliary Service” to the other GSA/IATA operators and therefore the commission earned by them is not exigible to service tax as proposed in the show cause notice and confirmed in the impugned order. Therefore, the impugned order is not legally sustainable and is liable to be set aside - Appeal allowed.
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