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2018 (8) TMI 701

e. The initial show-cause notice demanded service tax under the category of C & F Agents. While passing the Review order, the Commissioner has held that the services rendered by the appellants fall under ‘Business Auxiliary Service’. For this reason itself, the impugned order is fit to be set aside. - The impugned order does not survive on merits either. The learned Commissioner while holding the service to be ‘Business Auxiliary Service’ has held that exemption as per N/N. 13/2003-ST is not applicable. - Appeal allowed - decided in favor of appellant. - ST/89/2008-DB - Final Order No. 21111 / 2018 - 7-8-2018 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER And HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER MR. RAVI SHANKAR K S, ADVOC .....

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se 19 of Section 65 of the Finance Act, 1994. 2. The learned counsel for the appellants has submitted that the show-cause notice was issued to the appellants for the services alleged to have been rendered as Clearing and Forwarding Agent by relying on the judgment of the Tribunal in the case of Prabhat Zarda Pvt. Ltd. (supra). The Joint Commissioner vide Order No.22/2005 dated 30.11.2005 has dropped the proceedings holding that the appellants do not undertake any of the activities which a C & F Agent undertakes. The Commissioner of Central Excise has issued a show-cause notice under the powers to review as per the provisions of Section 84 of the Finance Act, 1994 holding that the Tribunal in the case of Prabhat Zarda Pvt. Ltd. (supra) h .....

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original proceedings. The order is opposed to the decisions of the Tribunal in Aero Products vs. CST, Bangalore: 2011 (22) STR 522 (Tri.-Bang.); AIA Engineering Ltd. vs. CCE, Ahmedabad: 2013 (32) STR 610 (Tri.-Ahmd.); and Brij Mohan Surinder Kumar vs. CCE, Ludhiana: 2012 (25) STR 58 (Tri.-Del.). 2.2 The Commissioner made revisionary order on the basis of the case of Prabhat Zarda Factory (India) Ltd. (supra), it is submitted that the decision was overthrown by the Larger Bench decision in the case of Larsen & Toubro Ltd. vs. CCE, Chennai: 2006 (3) STR 321 (Tri.-LB) wherein it was held that mere procuring or booking orders for the principal by an agent on payment of commission basis would not amount to providing service as Clearing and .....

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Agents. While passing the Review order, the Commissioner has held that the services rendered by the appellants fall under Business Auxiliary Service . For this reason itself, the impugned order is fit to be set aside. 4.1 Moreover, we find that the impugned order does not survive on merits either. The learned Commissioner while holding the service to be Business Auxiliary Service has held that exemption as per Notification No.13/2003-ST is not applicable. We find the logic extended by the Commissioner for denial of exemption Notification is not acceptable in view of the findings of the Hon ble Tribunal in the case of Brindco Sales Ltd. (supra). Thus, we find that the appeal survives on both the counts. 5. In view of the above, the appeal i .....

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