TMI Blog2015 (11) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ] and that these appeals can be remanded to the original adjudicating authority for deciding the matter in accordance with the said judgement. - Impugned order is set aside - Decided in favour of assessee. - Appeal Nos.ST/51646 - 51647/2014-CU[DB] - Final Order Nos52279-52280/2015 - Dated:- 30-6-2015 - Mr. G. Raghuram, President And Mr. R.K. Singh, Member (Technical) For the Petitioner : Shri Anil Kher, Sr. Advocate And Ms. Anisha Mahajan, Advocate For the Respondent : Shri Govind Dixit, DR ORDER Per Mr. R.K. Singh : These appeals have been filed against Orders-in-Appeal No.101-104-ST/LKO/2013 dated 23.12.2013, which upheld the respective Orders-in-Original in terms of which service tax demand of ₹ 3,43,073/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 retail at price not exceeding MRP fixed by the Amway. This activity of the Distributors, in our view, cannot be treated as promotion, marketing or sale of the goods produced or provided by or belonging to the client (Amway), as the sale of the goods purchased by the Distributors from Amway is not the sale of the goods belonging to their client Amway. Once the Amway products have been purchased by a Distributor from Amway, those products cease to belong to Amway, but belong to the Distributor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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 distinction has been made between the commission earned by a Distributor from Amway based on his own volume of purchase from Amway and the commission earned by him on the basis of the volume of purchases of Amway products made by his sales group i.e. group of second level of Distributors appointed by Amway on being sponsored by the Distributor. For quantifying the service tax demand on the commission received from Amway on the volume of purchase made by the distributors sponsored /enrolled by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is that this exemption is not applicable when the taxable service is provided by a person under a brand name/trade name, whether registered or not, of another person and in this group of cases, the Distributors have promoted the sale/marketing of branded products. This plea of the Department is not correct, as in these cases the distributors are engaged in promoting sales/marketing of the products of Amway and they are not marketing or promoting any taxable service which is branded and the brand nam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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