GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
What's New Case Laws Highlights Articles News Forum Short Notes Statutory TMI SMS More ...
Extracts
Home List
← Previous Next →

2016 (3) TMI 1050 - CESTAT MUMBAI

2016 (3) TMI 1050 - CESTAT MUMBAI - 2016 (43) S.T.R. 193 (Tri. - Mumbai) - Eligibility for exemption from Service tax in terms of Notification No.13/2003-ST dated 20.06.2003 - Notification exempts from payment of Service Tax the “Business auxiliary services” provided by a “commission agent” - Engaged in marketing and selling of Indian Made Foreign Liquor (IMFL) for BDA LTD. - Consideration which the appellant was to receive for such services was linked to the quantum of goods actually sold - Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ression commission agent in the Notification, we are not inclined to look at the common parlance meaning of the said expression or its meaning in the VAT Laws. A letter dated 23.03.2000 addressed to the Appellant by BDA Ltd., shows that the appellant's service charges were fixed with reference to the quantum of products marketed by it. The debit advice annexed to the appeal shows that the consideration received was always linked to the quantum of sales effected. This evidence seems to lend suppo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

goods on behalf of BDA Ltd., or helped in collection or recovery of payments, it would remain entitled to the benefit of exemption. - Decided in favour of appellant with consequential relief - Appeal No. ST/389/12 - Final Order No. A/86650/2016-WZB/STB - Dated:- 6-1-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri Vipin Kumar Jain, Advocate For the Respondent : Shri D. Nagvenkar, Addl. Commr (AR) ORDER PER: M.V. RAVINDRAN This appeal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o BDA Ltd., were in furtherance of contract/agreement entered in 1992 in which appellant has been appointed by BDA Ltd., for marketing services and for consultancy to effectively promote the sale of IMFL/Beer belonging to BDA Ltd. On examination and outcome of an inquiry conducted by the Officers of Preventive Section, Mumbai I Commissionerate, it was noticed that appellant had received an income as commission on which service tax liability arises under the category of Business Auxiliary Service .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, 1994. 3. Learned Counsel appearing on behalf of the appellant would take us through various clauses of Manufacturing Agreement entered by them during the period in question. He would draw our attention to the specific clauses and submit that the appellant had in fact, did not promote any goods produced or provided or belonging to the clients. It is the submission that substance of the agreement was not appreciated by the adjudicating authority and though the amounts received are actually accou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nitiative; the adjudicating authority has read the agreement in isolation and has not considered it in a holistic manner. It is the further submission that the Notification No.13/03-ST grants exemption in respect of services rendered by the commission agents. Assuming that the appellant had rendered the services of commission agents, the appellant satisfy the pre-requisite for being a commission agent in terms of Notification 13/03-ST while the denial of said exemption Notification by the adjudi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s so there cannot be any service tax liability as the activity per se does not amount services. Alternate submission is that having discharged the said service tax liability, provisions of Section 73(3) will be attracted and no notice was required to be issued and the learned Counsel prays to set aside the impugned order. 4. Learned D.R. on the other hand, drawing our attention to the very same agreement submits that the agreement specifically requires the appellant herein to undertake the marke .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Tri. Ahmd.) will be applicable in its full force. He would also submit that the judgement of the Tribunal in the case of CCE, Raipur v. Raj Wines - 2012 (28) STR 46 (Tri. Del) may also be considered. 5. We have considered the submissions made at length by both sides and perused the records. 6. The short issue involved in this appeal is whether the services rendered by the appellant to BDA Ltd., during the period July, 2003 to 08.07.2004 were eligible for exemption from Service Tax in terms of No .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n the ground that the activities performed by the appellant were much wider than that of a commission agent as defined in the Notification. He has observed that though the commission was fixed with reference to the quantity of goods actually sold, the activities of the appellant were not confined to sale only but covered various other services starting from arranging the production of goods by engaging bottlers/distillers upto collection of sale proceeds. The Commissioner proceeds on the premi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e in relation to purchase or sale of goods, this is only for defining the eligibility criterion and is relevant only for determining whether or not an assesse claiming the benefit of this Notification is a commission agent or not. Once it is held that the assessee is a commission agent by virtue of being engaged in the activity of causing sale or purchase for a consideration which is linked to the quantum of sale or purchase, the benefit of this Notification will cover all business auxiliary .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts for the client; or (v) Production of goods on behalf of the client; or (vi) Provision of service on behalf of the client; or (vii) A service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a comm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or service for the client or any customer care service provided on behalf of the client or production of goods on behalf of the client or provision of service on behalf of the client or any incidental or auxiliary service such as billing, issue or collection or recovery or cheques, payments, maintenance of accounts and remittance, including inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision etc. 6.3 The other ser .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

auxiliary service. These services, if rendered by a commission agent are exempt under the Notification. 6.4 The Commissioner in Para 36 of the impugned order does not dispute that the appellant was engaged in the activity of selling IMFL/Beer for BDA Ltd. The Commissioner also does not dispute that the consideration which the appellant was to receive for such services was linked to the quantum of goods actually sold. Thus, the twin requirement of the definition of commission agent viz., tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the case of Premier Enterprises Vs. CCE, Hyderabad reported in 2009 (16) S.T.R. 158 (Tri. Bang.) was dealing with a somewhat similar situation where an assessee claiming to be a commission agent within the meaning of the same Notification, was not only causing sale of liquor but also performing many other activities of promoting or marketing of goods. The Revenue had denied the benefit of Notification No.13/2003-ST dated 26.03.2003 by holding that the assessee therein was performing activities w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on was denied and the decision of the Bangalore Bench of the CESTAT in the case of Premier Enterprise cited supra was distinguished. We do not find this decision to be of any relevance to the present case as this decision was rendered in the context of some peculiar facts prevailing in that case viz that the consideration received by the assesse therein was not really linked to the quantum of sales effected as is the requirement of the Notification, but was really a trading margin being retained .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sion. Further, the argument that the Notification No.13/2003-ST dated 20.06.2003exempts all services covered under the Business auxiliary services as has been urged before us in the present case, was never canvassed or dealt with in that case. 6.7 Another decision cited by the Ld. Representative of the revenue is the case of Raj Wines (supra) wherein the benefit of exemption was denied on the ground that the consideration received by the assessee in that case was not merely based on the volume .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hat the appellant will help BDA Ltd., in procurement of liquor by appointing distillers/bottlers on behalf of BDA Ltd., no such activity of arranging appointment of distillers/bottlers between the appellant and the BDA Ltd., was actually carried out during the period July, 2003 to 08.07.2004 for which demand has been raised in the present case. It was submitted that that all the 16 bottlers appointed by the appellant on behalf of BDA Ltd., a fact cited in the order of the Commissioner, were appo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Latest Notifications:

    Dated      Category

20-7-2017 Cus (NT)

18-7-2017 IT

18-7-2017 CE (NT)

18-7-2017 CE

18-7-2017 GST CESS Rate

15-7-2017 Kerala SGST

14-7-2017 Andhra Pradesh SGST

14-7-2017 Cus (NT)

14-7-2017 Cus

13-7-2017 Co. Law

13-7-2017 Co. Law

13-7-2017 ADD

13-7-2017 ADD

12-7-2017 Jammu & Kashmir SGST

12-7-2017 Gujarat SGST

12-7-2017 Gujarat SGST

12-7-2017 CGST Rate

12-7-2017 UTGST Rate

12-7-2017 UTGST Rate

12-7-2017 IGST Rate

More Notifications


Latest Circulars:

19-7-2017 Income Tax

18-7-2017 Customs

17-7-2017 Customs

14-7-2017 Income Tax

13-7-2017 Central Excise

13-7-2017 Customs

13-7-2017 Central Excise

13-7-2017 Customs

7-7-2017 Income Tax

7-7-2017 Goods and Services Tax

More Circulars



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version