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2022 (2) TMI 361 - AT - Service TaxLevy of Service tax - Business Auxiliary Service - commission amount to the tune ranging from 11% to 12% paid to commission agent located outside the India - case of the department is that said commission shown in the shipping bills/ export invoices is nothing but commission paid to the commission agent towards export of goods, therefore said commission amount is chargeable to service tax under the head “Business Auxiliary Service” - HELD THAT:- Firstly, there is no commission agent exist who provided the service for export trading of the goods exported by the appellant. When no service provider is in existence it cannot be said that the appellant have received the commission agent service. Secondly, it is also fact that the appellant have not paid the commission to any person in the foreign country. Therefore, in absence of any consideration paid for the alleged commission agent services no service tax can be demanded. In the export invoice the appellant have deducted an amount in the nomenclature of commission from the gross sale price thus, the deduction was passed on to the buyer of export goods which is nothing but a discount given to the Foreign Buyers of the goods - neither any service provider exist nor was any consideration paid to any service provider. Therefore, the department’s contention is baseless and not sustainable. From various judgments it can be seen that on the identical issue this tribunal has taken a consistent view that merely because in invoice commission is mentioned that alone is not sufficient to treat it as a commission but the same should be treated as discount only. Consequently no service exist hence no service tax can be demanded - reliance can be placed in the case of LAXMI EXPORTS AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, SURAT [2020 (9) TMI 838 - CESTAT AHMEDABAD]. The appellant is not liable to service tax on the so called commission mentioned in the invoice of the export - appeal allowed - decided in favor of appellant.
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