TMI Blog2007 (4) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... that Hindustan Lever Ltd. would despatch the said products to the commission agent, he would clear the consignments, store them in his godown and sell them at prices indicated by M/s. Hindustan Lever Ltd. The sale proceeds are remitted to Hindustan Lever Ltd. on a weekly basis, after keeping the agent's commission. 2. Under the impugned order. Commissioner (Appeals) set aside the service tax demand of about Rs. 19,000.00 made on the respondent agent. The demand had been made by treating it as a clearing and forwarding agent . The Commissioner set aside that finding and held that a commission agent came within the scope of Business Auxiliary Services , another service subject to service tax during the relevant period and that com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of this Tribunal in the case of Super Poly Fabriks Ltd. v. CCE, Ludhiana as reported in 2006 (4) S.T.R. 595 (Tri. - Del.). 6. The learned counsel for the respondent would submit that revenue's contention cannot arise at all since commission agent remains specifically included in the definition of another service namely Business Auxiliary Services . He would also point out that commission agent remains defined under Business Auxiliary Services as a person, inter alia, 'dealing with goods'. It is his contention that mere receipt of the goods and storing it before sale would not convert a commission agent into a consignment agent or a clearing and forwarding agent. It is also being pointed out that, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission agent to keep proper books of accounts, which will be open to the company's officials for inspection. Clause 14 is about submission of weekly returns by the agent. Clause 15 stipulates that the commission agent shall send the sale price to the company, on a weekly basis, after keeping its commission. Clause 17 states that the commission shall be on a ex-factory basis and Clause 18 permits the agent to make local delivery to his customers and to charge the cost of such despatches. The revenue's contention is that these clauses make the relationship one of clearing and forwarding agency. Learned SDR would emphasis Clause 12 in particular as it states that the agent will despatch the products to destinations either by rail o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatever be the terminology used the agreement, in substance, the relationship is that of a commission agent, earning a commission on sales. 9. The statutory definition of Business Auxiliary Services , specifically mentions commission agent as covered by Business Auxiliary Services . The definition also defined commission agent as any person who acts on behalf of other persons and causes sale or purchase of goods for a consideration and include any person who, while acting on behalf of another person (i) deals with goods . Thus, the definition of commission agent includes a person who deals with goods , therefore, the contention of the learned SDR that a commission agent does not physically deal with goods, and upon dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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