TMI Blog2018 (8) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... decide the issue afresh in view of the findings of this Tribunal in the above mentioned order. Appeal allowed by way of remand. - Appeal No. ST/50312/2015-CU [DB] - Final Order No. 52733/2018 - Dated:- 2-8-2018 - Hon ble Shri Anil Choudhary, Member ( Judicial ) And Hon'ble Shri C. L. Mahar, Member ( Technical ) Shri Anil K Kher Ms. Namita Sharma, Advocate for the Appellant Shri Vivek Pandey, AR for the Respondent ORDER Per C. L. Mahar 1. Brief facts of the matter are that the appellant is working as a distributer/ marketing agent for M/s Amway India Enterprises Pvt. Ltd., New Delhi and was getting commission in lieu of providing said services. It has been case of the Department that the appellant was not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... client or belonging to the client. This expression, in our view, would not cover the sale of the goods by a person, which belong to him, as the activity of the promotion or marketing or sale of the goods by a person belonging to him would not constitute service. The assessees in these cases are distributors, who purchase the goods from Amway at the Distributors Acquisition Price (DAP)) and sell the same in retail at price not exceeding MRP fixed by the Amway. This activity of the Distributors, in our view, cannot be treated as promotion, marketing or sale of the goods produced or provided by or belonging to the client (Amway), as the sale of the goods purchased by the Distributors from Amway is not the sale of the goods belonging to their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs appointed on being sponsored by the Distributor) would have to be treated as consideration for Business Auxiliary Service of sales promotion provided to Amway. Therefore, service tax would be chargeable on the commission received by a Distributor from Amway on the products purchased by his sales group. However, in the impugned orders Service tax has been demanded on the gross amount of commission and no distinction has been made between the commission earned by a Distributor from Amway based on his own volume of purchase from Amway and the commission earned by him on the basis of the volume of purchases of Amway products made by his sales group i.e. group of second level of Distributors appointed by Amway on being sponsored by the Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an individual to a client, was taxable. Moreover, in this group of appeals, the Appellants in Appeal No. ST/257/2011 and ST/259/2011 are proprietary firms who, without any doubt, are commercial concerns. 15. Another point of dispute is as to whether duty exemption under notification No. 5/2006-ST would be admissible to the Distributors in this group of cases. In this regard, the Department s plea is that this exemption is not applicable when the taxable service is provided by a person under a brand name/trade name, whether registered or not, of another person and in this group of cases, the Distributors have promoted the sale/marketing of branded products. This plea of the Department is not correct, as in these cases the distributor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions on this point, we are of the view merely because the assessees did not apply for Service Tax Registration or did not file ST-3 Returns or did not declare their activities to the jurisdictional central excise authorities, it cannot be inferred that this was a wilful act with intent to evade payment of service tax. We also take notice of the fact that in respect of appeals filed by the Revenue, the Commissioner (Appeals) after analyzing the activities of the assessees had taken the view that the same is not covered by the definition of Business Auxiliary Service under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994. When on the issue involved in this group of cases, there were two views in the Department it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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