TMI Blog2017 (11) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to the condition that all the eight conditions specified there are satisfied - The adjudicating authority has elaborately discussed these criteria and held that appellant has not fulfilled the same - the appellant cannot be treated as a pure agent as defined in the rules. Consequently, the appellant is required to discharge service tax on the full amount received from M/s. Prasar Bharti i.e. including both the commission at the rate of 10% as well as broadcast fees. Reliance paced in the case of Neelav Jaiswal & Brothers Versus CCE, Allahabad [2013 (8) TMI 147 - CESTAT NEW DELHI], where it was held that unless all the conditions pure agent are satisfied, the appellant will not be entitled to any exclusion from the taxable service for amounts received towards salary, provident fund, etc. Demand upheld - Appeal dismissed - decided against appellant. - ST/52058/2014-CU[DB] - ST/A/56730/2017-CU[DB] - Dated:- 25-9-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Technical Member Present Shri Atul Gupta, Advocate for the appellant Present Shri Sanjay Jain, DR for the respondent ORDER Per: V. Padmanabhan The appeal is again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes recovery of staff cost from the recipient including salary and other contributions. Since the appellant has received not only their commission amount but also amount towards salary for the broadcasting personnel supplied by them, service tax is liable to be paid on the entire consideration received. He also relied on the following case laws: i) Neelav Jaiswal Brothers Vs. CCE Allahabad - 2014 (34) STR 225 (Tri-Del) ii) CCE Mumbai Vs. Jubiliant Enpro Pvt. Ltd. - 2016 (46) STR 448 (Tri-Mum) 6. After hearing both the sides and perusal of the record, we note that the appellant has rendered the service of man power recruitment or supply service, to M/s. Prasar Bharti by making available broadcast personnel as per their requirement. In terms of the agreement between the appellant and M/s. Prasar Bharti, the appellant is entitled to receive reimbursement of the broadcast fees paid to the broadcast personnel. In addition they will also be entitled to receive 10% of such fees payable to personnel as their commission. It is seen from record, that the appellant has already discharged service tax on the commission amount, but have not paid service tax on the reimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f taxable service is with any associated enterprise.] 8. As can be seen above, section 67 specifies that wherever the provision of service is for a consideration, the taxable value would be a gross amount charged by the service provider for such service. The Service Tax (Determination of Value) Rules 2006 provides for exclusion from the taxable value, amount received in the capacity of pure agent . The claim of the appellant is that the broadcast fees was received by them in their capacity as pure agent. 9. To decide whether the appellant was acting as a pure agent, we need to refer to rule 5 (2) of the Service Tax Valuation Rules 2006. In the said rule, expenditure incurred by the service provider as a pure agent can be excluded from the value of taxable service subject to the condition that all the eight conditions specified there are satisfied. Further, pure agent has been defined to mean a person who: a) Enters into a contractual agreement with the recipient of service to act as his pure agent to incur expenditure or costs in the course of providing taxable service. b) Neither intends to hold nor holds any title to the goods or services so procured or prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the entire service charges, including the amount to be paid to such Broadcasting personnel is received by them. However, the service tax has not been paid on the entire amount received but only on a fraction thereof representing fee for the notice. In view of the above, I note that the notice do not qualify the above referred three conditions to be termed as a pure agent. I further note that section 67 of the Finance Act, 1994. 11. We are in agreement with the findings of the adjudicating authority in this regard and hence, the appellant cannot be treated as a pure agent as defined in the rules. Consequently, the appellant is required to discharge service tax on the full amount received from M/s. Prasar Bharti i.e. including both the commission at the rate of 10% as well as broadcast fees. 12. We have gone through the case laws in respect of Neelav Jaiswal Brothers and Jubiliant Enpro (Supra), we find that the decision of the Tribunal in the above two cases, supported the view that unless all the conditions pure agent are satisfied, the appellant will not be entitled to any exclusion from the taxable service for amounts received towards salary, provident fund, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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