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2016 (11) TMI 488 - AT - Service TaxWhether the appellant has provided commission agent services, during the relevant period which were exempted vide notification number 13/03-ST dated 20.06.2003 or they have provided Business Auxiliary Services which would be liable to tax? - Held that: - the appellate authority is not disputing the fact that the appellant is satisfying condition (ii) and (iii) of the above definition but has not held the appellant to be Commission agent because he only informs the principal about the customers and his principal himself enters into a contract with the customers. In our views, such a distinction made by Commissioner (A) does not advance the revenue s case. Admittedly, the customer is brought to the principal by the appellant and the commission is paid to the appellant only when the sale / purchase is materialized. Whether negotiation is done by the principal or by the appellant will not have any effect on the fact of getting commission only on the finalization of the sale / purchase. We find that an identical situation was considered by the Tribunal in the case of Commissioner of Central Excise Vadodara Vs. M A Menon & Co. [2008 (11) TMI 109 - CESTAT, AHMEDABAD] wherein the Tribunal held that in as much as the assessee was primarily engaged in the sale activity and gets his commission only when the sale materializes he has to be held as commission agent. As much as the assessee gets the commission only when the product stands purchased by the Customer, they have to be held as commission agent, irrespective of the fact that for procuring such orders from the buyers they were doing marketing survey also - the appellant is only a commission agent. If that be so, the benefit of notification number 13/03 dated 20.06.2003 would be available to them - appeal allowed - decided in favor of appellant.
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