TMI Blog2018 (10) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, pursuing any reply filed or to be filed alongwith evidences, if any, and pass the reasoned order in accordance with law - appeal allowed by way of remand. - Service Tax Appeal No. 1605 of 2011 - ST/A/53030/2018-CU[DB] - Dated:- 26-7-2018 - Shri Anil Choudhary, Member (Judicial) And Shri C.L. Mahar, Member (Technical) Shri Kunal Tandon, Advocate for the appellant. Shri G.R. Singh, Authorized Representative (DR) for the Respondent. ORDER Per. Anil Choudhary :- The issue involved in this appeal is whether the appellant is chargeable to service tax in its activity of working as distributor/marketing agent of M/s Amway India Enterprises Pvt. Ltd., Plot No. 5, DDA Local Shopping Centre, Okhla Commercial Complex, Phase II, New Delhi 110 020 (herein after referred to as the company ) and are getting commission in lieu of providing the said services but are not paying Service Tax on the commission received from the company. The services of commission/marketing agents are covered under the taxable category of Business Auxiliary Services . This resulted in to initiation of enquiry under Section 14 of the Central Excise Act, 1944, as made appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was adjudicated on contest confirming the proposed demand and further penalty was imposed under Section 77 (1a) readwith Section 77 (2) and further penalty of ₹ 7,10,184/-. Being aggrieved the appellant preferred appeal before Commissioner (Appeals) to the impugned order dated 27 th September 2011 have been pleased to reject the appeal. 6. Being aggrieved, the appeal before this Tribunal. The learned Counsel states that the issue is no longer res-integra and this Tribunal have in its judgment in the case of Charanjeet Singh Khanuja vs. CST, Indore/Lucknow/Jaipur/Ludhiana by order dated 09/06/2015 reported at 2016 (41) S.T.R. 213 (Tri. Del.) have decided the issue held as below :- 12. According to the Department, the activity of the assessees is promotion or marketing or sale of the goods produced or provided by or belonging to the client. In our view, the activity which is covered under Section 19(i) is in relation to the promotion or marketing or sale of the goods produced by the client or provided by the 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 acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales 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 Distributor. For quantifying the Service tax demand on the commission received from Amway on the volume of purchase made by the distributors sponsored /enrolled by a particular distributor i.e. the Distributor s sales group, these matters would have to be remanded to the Original Adjudicating Authority. 14. Another objection raised by the appellants in Appeals Nos. ST/138 and 139/2009, ST/406/2010, ST/522 to 525/2010, ST/257, 259, 433, 473, 502, 580, 1123, 1383, 1781 1802/2011, ST/56, 86, 126, 645/2012 and ST/1723-1724, 2337 and 2810/2012 and the respondents in Appeals Nos. ST/851 to 854, 863, 864, 865, 866, 867, 868, 869, 870 and 878/2012 is that the assessees are individuals and during the period till 30-4-2006, Service tax was charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts or deliberate contravention of the provisions of the Finance Act, 1994 or of the Rules made thereunder with intent to evade payment of Service tax. The Department s contention, on the other hand, is that the assessees neither obtained service tax registration nor did they declare their activities to the jurisdictional Service tax authorities nor did they file ST-3 Return and, therefore, they are guilty of suppression of relevant facts and deliberate violation of the provisions of Finance Act, 1994 and of the Rules made thereunder with intent to evade payment of tax. On considering the rival submissions 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 willful 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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