TMI Blog2015 (8) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 585 - CESTAT NEW DELHI] followed - matter remanded back - Decided in favour of assessee. - ST/Stay/55611/2014 in Appeal No. ST/54968/2014 - - - Dated:- 9-6-2015 - G Raghuram, President And R K Singh, Member (T),JJ. For the Appellant : Shri Anil Kher, Senior Adv. Ms Anisha Mahajan, Advs. For the Respondent : Shri B B Sharma, DR ORDER Per: R K Singh: Stay application and appeal have been filed against order-in-appeal No. LUD-EXCUS-000-APP/105 to 107-14-15 dated 28/04/2014 in terms of which the service tax demand of ₹ 90,995/- was confirmed vide order-in-original dated 18/02/2013 was upheld along with interest. However, penalties under Sections 75A, 76, 77 and 78 of the Finance Act 1994 were set aside. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the Department, the activity of the assessees is promotion or marketing or sale of the goods produced or provided by or belonging to the client. In our view, the activity which is covered under Section 19(i) is in relation to the promotion or marketing or sale of the goods produced by the client or provided by the client or belonging to the client. This expression, in our view, would not cover the sale of the goods by a person, which belong to him, as the activity of the promotion or marketing or sale of the goods by a person belonging to him would not constitute service. The assessees in these cases are distributors, who purchase the goods from Amway at the Distributors' Acquisition Price (DAP)) and sell the same in retai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being sponsored by that Distributor are appointed by Amway as second level of distributors is, in our view, the activity of marketing or sale of the goods belonging to Amway and the commission received by the Distributor from Amway, which is linked to the performance of his sales group (group of the second level of distributors appointed on being sponsored by the Distributor) would have to be treated as consideration for Business Auxiliary Service of sales promotion provided to Amway. Therefore, service tax would be chargeable on the commission received by a Distributor from Amway on the products purchased by his sales group. However, in the impugned orders service tax has been demanded on the gross amount of commission and no distincti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l activity, he has to be treated as business or commercial concern. Therefore, notwithstanding the fact that w.e.f, 1.5.2006 the term, 'commercial concern' in Section 65(105)(zzb) was replaced by 'any person', we are of the view that even during the period prior to 1.5.2006, the Business Auxiliary Service, even if provided by an individual to a client, was taxable. Moreover, in this group of appeals, the Appellants in Appeal No.ST/257/2011 and ST/259/2011 are proprietary firms who, without any doubt, are commercial concerns. 15. Another point of dispute is as to whether duty exemption under notification no.5/2006-ST would be admissible to the Distributors in this group of cases. In this regard, the Department's plea i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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