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2015 (6) TMI 467 - CESTAT MUMBAI

2015 (6) TMI 467 - CESTAT MUMBAI - TMI - Denial of refund claim - input services - Commission paid to agents - services were utilised for export of goods or not - Held that:- though the business activities mentioned in the definition are not exhaustive, the service rendered by the commission agents not being analogous to the activities mentioned in the definition, would not fall within the ambit of the expression "activities relating to business" - Assessee in this case is also not eligible for .....

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appeal number AKP/63/NSK/2009 dated 30/09/2009. 2. Revenue is in appeal against the impugned order which has set aside the order in original vide which refund of the service tax amount paid on the commission to the agents, as the said services were utilised for export of goods. 3. Heard both sides and perused the records. 4. On perusal of the records, it transpires that the respondent herein is a 100% percent EOU and filed an application for refund of unutilised credit of duty paid on input and .....

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the ground that the services were not used in the manufacture of the final products which were exported. On an appeal, the first appellate authority accepted the arguments made by the appellant assessee before him and set aside the order in original and allowed the appeal. 5. Revenue is aggrieved by the said order and on consideration of the submissions made by both sides and perusal of the grounds of appeal, I find that the issue is no more re-integra. Honourable High Court of Gujarat in the c .....

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Commission agent" has been defined under the explanation to "business auxiliary service' and insofar as the same is relevant for the present purpose means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration. Thus, the commission agent merely acts as an agent of the principal for sale of goods and such sales are directly made by the commission agent to the consumer. In the present case, it is .....

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n to the manufacture of final products and clearance of final products from the place of removal and includes services used in relation to various activities of the description provided therein including advertisement or sales promotion. Thus, the portion of the definition of input service insofar as the same is relevant for the present purpose refers to any service used by the manufacturer directly or indirectly in relation to the manufacture of final products and clearance of final products fr .....

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sessee can be stated to services used as sales promotion. In the absence of any material on record, as noted above to indicate that such commission agents were involved in the activity of sales promotion as explained in the earlier portion of the judgement, in the opinion of this court, the claim of the assessee was rightly rejected by the Tribunal. Under the circumstances, the adjudicating authority was justified in holding that the commission agent is directly concerned with the sales rather t .....

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vities relating to the business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security". The words "activities relating to business" are followed by the words "such as". Therefore, the words "such as" must be given some meaning. In Royal Hatcheries (P) Ltd. v. State of A.P., 1994 Supp (1) SCC 429, the Supreme Court held that the words "such as" .....

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he inclusive part of the definition. For an activity related to the business, it has to be an activity which is analogous to the activities mentioned after the words "such as". What follows the words "such as" is "accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security". Thus, what is required to be examined is as to whether the service rendered by commission agents can .....

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