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2016 (3) TMI 856 - CESTAT MUMBAI

2016 (3) TMI 856 - CESTAT MUMBAI - 2016 (43) S.T.R. 106 (Tri. - Mumbai) - Liability of Service tax - Rendering of Business auxiliary service - Amounts received as 'commission agent' subject to a minimum of ₹ 1,10,000/- per month falls within the definition of 'business auxiliary service' in section 65 (19) of Finance Act, 1994 - Held that:- the claim of the appellant for immunity from taxability under section 65(105) (zzb) is not tenable. Therefore, the impugned order is modified by recomp .....

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:- HUFs can also be commercial concerns is no longer res integra as decided by Tribunal in the case of re Infinity Credit. Therefore, for reasonableness of doubt that individuals may not be 'commercial concerns', section 80 of Finance Act, 1994 be invoked and penalty imposed under Section 78 is set aside. - Cum-tax computation - Rental of immovable property - Appellant is the custodian of the goods intended for sale - Held that:- the remuneration that was to be made over to the appellant is .....

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ranteed amount of ₹ 1,10,000/-. The agreement also makes it clear that M/s Style Spa is responsible for discharge of tax liability. In view of these facts, the plea of the appellant for 'cum-tax' computation is justified. - Appeal disposed of - Appeal No. ST/255/2011 - Final Order No. A/86250/2016-WZB/STB - Dated:- 7-3-2016 - M V Ravindran, Member (J) And C J Mathew, Member (T) For the Appellant : Shri D H Nadkarni, Adv For the Respondent : Shri B Kumar, Superintendent (AR) ORDER Per C J M .....

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from February 2004 to April 2006 on amounts allegedly received as 'commission agent' which falls within the definition of 'business auxiliary service' in section 65 (19) of Finance Act, 1994. The appellant entered into an 'agreement of retail agency' with M/s Style Spa in January 2004 in accordance with which the appellant provided its space in a commercial building for exhibiting the products of M/s Style Spa which were to be delivered by the appellants to customers on i .....

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vity. 4. Learned Counsel for the appellant placed reliance on section 65 (105)(zzb) of Finance Act, 1994 which restricted tax on 'business auxiliary service' to that rendered by 'commercial concern' till the amendment therein on 1 st June 2006. Citing decisions of the Tribunal in Infinity Credit v Commissioner of Central Excise, Jaipur [2009 (16) STR 61 (Tri-Del)] and Mangal Singh v Commissioner of Central Excise, Jaipur-I [2008 (11) STR 17 (Tri-Del)], it was contended an HUF is .....

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of Finance Act,1994 and the contents of the 'retail agency agreement' to support the case of Revenue. 6. We find that the definition of 'business auxiliary service' includes that rendered by a 'commission agent' since the introduction of the taxable entry but 'commission agents' were exempted from the purview of tax by notification no. 13/2003-ST dated 20 th June 2003. However, the said exemption was restricted to sale and purchase of agricultural produce vide not .....

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lant is a 'commercial concern'. 8. Appellant contends that members of HUF are individuals and that the decisions cited supra exclude individuals from being taxed as 'commercial concern'. We find that the decisions were rendered in the limited context of imposition of penalties. Indeed, in re Infinity Credit, the Tribunal observed: "4. Learned Company Secretary fairly concedes that the issue whether a proprietary firm can be considered as a commercial concern has been decided .....

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