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TMI Blog2017 (11) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The appellant is an approved Member of IATA and are engaged in procuring space in the airlines on behalf of various clients. The airlines pay commission based on the business brought in by the appellant for transport of cargo. The airlines also pay incentives based on certain threshold turnover. The Revenue entertained a view that these consideration received as commission as well as incentive by the appellants are liable to be taxed under business auxiliary service in terms of Section 65 (19) of the Finance Act, 1994. The period involved in the dispute in respect of commission 01/07/2003 to 09/09/2004 and in respect of incentives 01/07/2003 to 31/03/2007. 2. The proceedings against the appellant concluded by the impugned order wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tractual arrangement which are incurred and claimed on actual basis and are supported documents. There is no mark-up or margin in such consideration retained by the appellant and as such these cannot be added in the taxable value in terms of Section 67. He also relied on the decision of Hon'ble Delhi High Court in Intercontinental Consultants and Technocrafts Pvt. Ltd. Vs. Union of India - 2013 (29) S.T.R. 9 (Del.). 3. The learned AR contested the appeal on the ground that the appellant are covered by the main definition for BAS as they are engaged in procuring the business for airline. There is no need to refer to the explanation or amendment to explanation which is for commission agents only. Regarding incentives he submitted that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) undertakes any activities relating to such sale or purchase of such goods or services;" 5. We note that the said explanation brings in a specific scope to the term "commission agent" and is to be considered applicable prospectively. The said explanation brings in the commission agent for services also into the tax net. Following the ratio of the Hon'ble Supreme Court in Union of India Vs. Martin Lottery Agencies Ltd. - 2009 (14) S.T.R. 593 (S.C.), we find that the said explanation is to be implemented for tax purpose from the date of introduction. We also refer here the explanation in exemption Notification dated 20/06/2003 which refers to commission agent as a person who causes sale or purchase of goods on behalf of another person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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