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2023 (7) TMI 1386 - AT - Service TaxLevy of service tax - Business Auxiliary service or not - commission on sale of liquor - SCN alleged that the Corporation was not a purchaser of liquor and it was merely providing sales, marketing activities covered under BAS - HELD THAT:- Where service tax is chargeable on any taxable service with reference to its value, then such value shall be determined in the manner provided for in (i), (ii) or (iii) of subsection (1) of section 67. What needs to be noted is that each of these refer to ‘where the provision of service is for a consideration’, whether it be in the form of money, or not wholly or partly consisting of money, or where it is not ascertainable. In either of the cases, there has to be a ‘consideration’ for the provision of such service. Explanation to sub-section (1) of section 67 defines ‘consideration’ to include any amount that is payable for the taxable services provided or to be provided, or any reimbursable expenditure, or any amount retained by the lottery distributor or selling agent. The contention of the Corporation is that the amount collected by the Corporation for the reason that the conditions stipulated in the agreement had not been complied with by the liquor manufacturers are not consideration in view of any service and, therefore, cannot be held to be taxable under section 66E(e) of the Finance Act 1994 in view of the Larger Bench decision of the Tribunal in Commissioner of Service Tax, Chennai vs. Repco Home Finance Ltd. [2020 (7) TMI 472 - CESTAT CHENNAI]and the Division Bench decision of the Tribunal in South Eastern Coalfileds vs. Commissioner of Central Excise and Service Tax [2020 (12) TMI 912 - CESTAT NEW DELHI]. In Repco Home Finance, the Larger Bench of the Tribunal held that the consideration must flow from the service recipient to the service provider for a taxable service provided under the Finance Act. The service recipient may have to fulfil certain conditions of the contract but that would not necessarily mean that it would form part of the value of the taxable service. Thus, the transaction of purchase and sale of liquor by the Corporation will not fall within the ambit of BAS and would, therefore, not be taxable - Appeal allowed - decided in favour of appellant.
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