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2011 (4) TMI 580 - CESTAT, NEW DELHICommission Agent or not - Exemption under Notification 13/2003-ST Dated 20-06-2003 - Impugned period 01-07-2003 to 08-07-2004 - whether the service provided by the Respondent is eligible for exemption under Notification 13/2003-ST Dated 20-06-2003. notification provides exemption for services provided by Commission Agents - The Revenue contests that the Respondents were not acting as a commission agent - Revenue relies on covenant 32 of the agreement where it is specifically stated that either of the parties shall not act as an agent of the other - Since the Respondent could not have acted as an agent of JCBI, there cannot be a question of acting as a commission agent - On a careful scrutiny of covenant 25 of the agreement it can be seen that the Respondents are not causing the impugned sales - the covenant 25 starts with the words "Notwithstanding anything to the contrary contained in this Agreement" - So it is argued that this covenant overrules covenant 32 which states that either of the party shall not act as the agent of the other - This is not an acceptable argument. Covenant 25 deals with dealer's margins - So the effect of the clause is that notwithstanding controls exercised by JCBI on final prices at which goods are sold, the Respondent will be eligible for a margin - Covenant 25 itself consists of 5 sentences. The notwithstanding clause applies only to the first sentence and not even to other sentences in the covenant. At any rate it cannot extend to covenant 32 - Held that in the case of impugned sales made directly by JCBI in the territory assigned to the Respondents for which respondent is receiving commission under covenant 25 of the agreement, the Respondent is not acting as an agent of JCBI and the service provided cannot be considered as services provided by a commission agent - Therefore the Appeal of revenue is allowed.
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