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2016 (11) TMI 488 - CESTAT NEW DELHI

2016 (11) TMI 488 - CESTAT NEW DELHI - TMI - Whether the appellant has provided commission agent services, during the relevant period which were exempted vide notification number 13/03-ST dated 20.06.2003 or they have provided Business Auxiliary Services which would be liable to tax? - Held that: - the appellate authority is not disputing the fact that the appellant is satisfying condition (ii) and (iii) of the above definition but has not held the appellant to be Commission agent because he onl .....

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the finalization of the sale / purchase. - We find that an identical situation was considered by the Tribunal in the case of Commissioner of Central Excise Vadodara Vs. M A Menon & Co. [2008 (11) TMI 109 - CESTAT, AHMEDABAD] wherein the Tribunal held that in as much as the assessee was primarily engaged in the sale activity and gets his commission only when the sale materializes he has to be held as commission agent. - As much as the assessee gets the commission only when the product st .....

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Member (Judicial) And Hon ble Shri V. Padmanabhan, Member (Technical) Shri K. Kant, Advocate for the Applicants Shri Govind Dixit, DR for the Respondent ORDER Per Archana Wadhwa The dispute in the present appeal is on the issue as to whether the appellant has provided commission agent services, during the relevant period which were exempted vide notification number 13/03-ST dated 20.06.2003 or they have provided Business Auxiliary Services which would be liable to tax. 2. As per the facts n rec .....

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f EML and as such falls under the category of Business Auxiliary Services , initiated the proceedings against them resulting in confirmation of demand by the original Adjudicating Authority and upheld by Commissioner (A). 4. Hence the present appeal. 5. We have seen the agreement which provides for payment of commission at the rate of 7.5% or FOB value of the goods exported. No commission is payable to the appellant if the sale does not take place. In fact, Commissioner (A) has examined the scop .....

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f such sale or purchase. Now I find that ingredients of the commission agent are as follows:- (i) The person cause sale or purchase of goods on behalf of another person. (ii) Receives a consideration from such another person. (iii) Such consideration are based upon quantum of sale or purchase. Now I find in terms of clause No. 10 of the agreement that once the appellant introduced the customer to M/s. EML, M/s. EML enters into a separate contract with the buyer introduced by the appellant and M/ .....

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(d) of definition of Business Auxiliary Services as defined during the period 01.07.2003 to 09.09.2004 under section 65 (19) of the Act. Thus in view of the above, I uphold the orders passed by the adjudicating authority and reject the appeal. 6. As seen from the above, the appellate authority is not disputing the fact that the appellant is satisfying condition (ii) and (iii) of the above definition but has not held the appellant to be Commission agent because he only informs the principal abou .....

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e / purchase. 7. In fact, we find that an identical situation was considered by the Tribunal in the case of Commissioner of Central Excise Vadodara Vs. M A Menon & Co. 2009 (13) STR 653 (Tri-Ahmd.) wherein the Tribunal held that in as much as the assessee was primarily engaged in the sale activity and gets his commission only when the sale materializes he has to be held as commission agent. For better appreciation we reproduce para 3 of the said judgment: We have considered the submissions m .....

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