TMI Blog2017 (4) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... he confirmed demand for normal period the matter is remanded to the original adjudicating authority. Extended period of limitation - Held that: - there has not been any evidence available on record to state that the appellant suppressed the facts from the Department with the intention to evade the service tax on the empanelment fee collected by them - the extended period in this regard cannot be invoked u/s 73(1) of the FA, 1994. Appeal is partly allowed and matter remanded for quantification of demand. - Appeal No. ST/3474/20120-CU[DB] - Final Order No. 52772/2017 - Dated:- 10-4-2017 - Hon ble Ms. Archana Wadhwa, Member (Judicial) And Hon ble Mr. Ashok K. Arya, Member (Technical) Mr. Bimal Jain, CA - For Appellant Ms. Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and decoration for clients to whom the assessee rented out their premises for holding functions, is not of commission agent falling under definition of BAS. (iv) The entire transaction is revenue neutral; vendor is paying empanelment fee out of the amount received from the service receipt and the service tax paid. Thus the entire exercise is revenue neutral. (v) Ld. consultant relies upon the CESTAT decision in the case of Dinesh M Kotian Vs. CCEST-I, Mumbai [2016 (42) STR 772 (Tri.-Mumbai)], in which it has been held that if service tax is paid by the assessee, same shall be available as Cenvat credit and to that extent net liability of service tax shall stand reduced; therefore, it is an exercise of revenue neutrality and for thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cidental 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 commission agent, [but does not include any activity that amounts to manufacture of excisable goods]. [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) commission agent means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount received by them is towards empanelment fee is not acceptable as the amount received by the assessee is not a onetime fee but is linked to per event i.e. more events are organised by any vendor, more fee is received by the assessee. Therefore, I am of the view, from the above discussions, that the fee charged from the vendor by the assessee is a commission and not a rebate as argued by the assessee and comes under Business Auxiliary Service under Section 65(19)(iv) of the Act, as amended and defined under Section 65(105)(zzb) of the Finance Act, 1994. 4.3 Further, in this regard, the findings of the Commissioner (Appeals) are reproduced below:- The second issue, whether the appellant is liable to pay service tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acceptance of the services of the particular vendors by the targeted customers. So, appellant s plea that the vendor is not their client as there is no service provider and client relationship between the appellant and vendor is proven wrong because the service provider and the client relationship is clearly reflected in the above circumstances. The appellant must have laid donw certain criteria on fulfilment of which only the vendors could get empanelled. Such empanelment enabled these vendors to get more business by way of providing required services to persons who hired the auditorium. Therefore, the appellant promoted the business of these vendors. There can be no dispute over the fact that activity undertaken by the appellant was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court observed that by giving monopoly right to caterer for providing catering and decorative services to hirer, mandap keeper cannot be held to have provided catering services, liable to service tax. The issue i.e. whether the mandap keeper was providing business auxiliary services to the caterer or not was not considered by the Hon ble High Court, and as such, it can be concluded that the said issue is not covered by the said decision of the Hon ble High Court, relied upon by the appellant. 4.6 In order to quantify the confirmed demand for normal period the matter is remanded to the original adjudicating authority who shall do so within four months of receipt of this Order and after giving the opportunity of hearing to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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