TMI Blog2016 (2) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... d quantity for export of tea and are professional tea taster. They also monitor the shipment of the goods and verify shipment documents, port regulations and other formalities for export of tea. Therefore, we find that the above activities do not fall within the meaning of commission agent. Accordingly, we hold that the appellant's activities are rightly covered under the category of "BAS" other than commission agent. Therefore, the question of appellant claiming tea as agricultural produce, which is applicable for only commission agent and not applicable to the appellant assessee's case. Accordingly, we hold that the demand along with interest is liable to be upheld. - Decided against the assessee. - ST/40294/2013 (By Assessee), ST/40440/2013 (By Deptt.) - Final Order No. 41455-41457 / 2015 - Dated:- 29-10-2015 - Shri R. Periasami and Shri P. K. Choudhary, JJ. For The Assessee : Shri P.C. Anand, Chartered Accountant For The Department : Shri B. Balamurugan, AC (AR) P.K. Choudhary, Judicial Member All the three appeals, two by the assessee M/s. Container Tea and Commodities and one by Revenue, are taken up together as the issue involved is common. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a manufactured commodity but agricultural produce and no liability arises to pay service tax on any commission received. Further he submits that the service of a commission agent were wholly exempt from the levy of service tax vide Notification No. 13/2003-ST dated 20.6.2003. The Explanation to this Notification defines Commission Agent meaning a person who causes sale or purchase of goods, on behalf of another person for a consideration which is based on the quantum of such sale or purchase. 5. The learned AR for Revenue reiterated the findings of the adjudicating authority and the first appellate authority in respect of the assesee's appeal and also the grounds of appeal in respect of the Revenue appeal and submits that 'agricultural produce' means any produce resulting from cultivation or plantation on which either no further processing is done or such process is done by the cultivator like tending, pruning, cutting, harvesting, drying which does not alter its essential characteristics but makes it only marketable. He further submits that the appellant-assessee is trying to take shelter under Notification No. 13/2003-ST dated 20.6.2003 (as amended) whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters paid service charges for the services rendered by the appellant-assessee for having carried out sales effectively as given below:- (i) 2.5% to 3% of export value depending upon the age of business connection (ii) ₹ 0.50 per kg. towards defragment of partial cost pertaining to fax, phone, e-mail, courier, sampling charges and other specified items. There is no such MOU/agreement available on the records. 7. The above activities show that in the whole process of export of tea, they guide exporters suitably in achieving the objectives to fulfil the contractual obligation. The activity is undertaken by the service provider to market 'tea' among foreign buyers as covered under the scope of Business Auxiliary Service. The appellant assessee provides the services of BAS for their clients and the same has been defined under Section 65(19) of the statue as under:- 'Section 65(19): business auxiliary service means any service in relation to, (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or Explanation - For the removal of doubts, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities undertaken by the person on behalf of the client. One of the activity is Commission Agent . In this regard, it is relevant to see that explanation D of Notification 13 of 2003 dated 20.06.2003 as amended by Notification 8 of 2004 dated 09.07.2004, which is reproduced as under:- Notification No: 08/2004, Dated: July 09, 2004 Sub: Sections 66, 93-Amends 12/2001; 13/2003 and 2/2004 In exercise of the powers conferred by Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby directs that the following notifications of the Government of India in the Ministry of Finance (Department of Revenue), as specified in column (2) of the Table below, shall be amended or further amended, as the case may be, in the manner and to the extent specified in the corresponding entry in column (3) of the said Table, namely: TABLE S. No. Notification No. and date Amendments (1) (2) (3) 2. 13/2003-Service Tax, dated the 20th June, 2003 (G.S.R. 504 (E) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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