TMI Blog2018 (11) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to the issue involved, is Bakliwal Brothers Vs. CCE, Raipur [2017 (9) TMI 84 - CESTAT NEW DELHI] wherein, the appellant was having a shop and activity of promoting sale of “Koutons” brand of readymade garments. The bench again held that such activity is not taxable, benefit of exemption for small scale service providers is available. Appeal allowed - decided in favor of appellant. - ST/27655/2013, ST/30254/2016, ST/31131/2017, ST/30459/2018 - A/31327-31330/2018 - Dated:- 27-9-2018 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Ms Gaythri, Advocate for the Appellant. Shri P.S. Reddy, Assistant Commissioner (AR) for the Respondent ORDER All these four appeals are taken up for disposal as the issue involved is the same and appellant is also the same. 2. The details of the appeals are under: Sl. No. Appeal No. Appellant (s) Respondent(s) Impugned Order 1. ST/27655/2013 Anusha Enterprises CC, CE, Visakhapatnam II OIA No. 22/2013 (VII) ST dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2012; that in order to constitute a service as one rendered under a brand name, the same needs to be a service provided using a brand name belonging to one person and the service recipient should be a person other than the brand name holder. In their case, they are not providing any service to a third person, under the brand name of BATA ; that penalties cannot be imposed, even if the issue of taxability is ultimately decided against them, as they are under the bonafide belief that they are not liable to pay service tax; They relied upon the decision of Hon ble CESTAT in Peoples Automobiles Ltd., Vs. CCE, Kanpur [2011 (24) STR 635 (Tri- Del)] and Gagandeep Singh Vs. CCE, Delhi [2012-TIOL-142-CESTAT-Del.]. 3.2 The Adjudicating Authority interalia held that the assessee are providing services of promotion, marketing and advertisement of the goods manufactured by M/s Bata India Ltd., and receiving commission for the same; It is seen that the name and style of M/s Bata India Ltd., is being used by the appellant and they are acting simply as agent; the case laws cited by the appellant are distinguishable in as much as the case law pertains to commission agents of both banking and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sell the footwear customers. The commission is received by the appellant being less than ₹ 4 lakhs and less than ₹ 10 lakhs during the periods in question, the tax liability confirmed denying the benefit of exemption notification is not in accordance with the law is settled in various forums. She relies upon the various decisions, Peoples Automobiles Ltd., [2011 (24) STR 635], MRS Jaspreet Kaur MR Gagandeep Singh Vs. CCE, Delhi [2012-TIOL-142-CESTAT-Del.], Bakliwal Brothers Vs. CCE, Raipur [2017 (51) STR 7] and Commissioner of Central Excise, Chandigarh Vs. A.S. Financial [2015 (37) STR 400]. She submits that the issue new squarely covered in their favour. 6. Learned Departmental Representative reads the findings of the First Appellate Authority and submits that the services rendered by the appellant are undisputedly taxable. It is his submission that the findings of the First Appellate Authority that in the instant case appellant title is M/s Anusha Enterprises is succeeded by the words Bata Shoe Stores , invoices for sale are in the name of Bata as per the show cause notice. It is his submission that the First Appellate Authority has recorded the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to tax the amount received by the respondent in that appeal (A.S. Financial). The relevant findings of the Tribunal in an issue similar/identical to the in the case in hand are reproduced. 5. There is no dispute that the services provided by the respondent to ICICI Bank are the services of marketing of the services of ICICI Bank and also assisting the customers in obtaining loans from the bank and this service is Business Auxiliary Service taxable under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994. There is also no dispute that the turnover of the respondent during each financial year, during the period of dispute, is less than ₹ 4 Lakhs. The only point of dispute is as to whether the respondent are eligible for small scale provider exemption under Notification No. 6/2005-S.T. and in this regard, the only point of dispute is as to whether the respondent were providing the Business Auxiliary Service to their client ICICI Bank Ltd. under brand name of another person, as if the service being provided by a small service provider is under the brand name of another person, the exemption under Notification No. 6/2005-S.T. would not be available. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being provided by ICICI Bank Ltd. are banking and financial services. Just by providing the Business Auxiliary Service to ICICI Bank Ltd. by using the promotional material provided by ICICI Bank Ltd., the Respondent cannot be treated as using the brand name of ICICI Bank Ltd. and providing their service under the brand name of ICICI Bank. In fact the Respondent are not the Franchise of ICICI Bank Ltd. in the sense that they are providing financial services by using the business model and brand name of ICICI Bank. It is not the case of the department that the respondent for using the brand name or trade name of ICICI Bank Ltd. were paying some amount to the bank. On the contrary, it is the ICICI Bank which is paying to the respondent for providing the marketing services. The respondent, therefore, cannot be treated using the brand name of ICICI Bank Ltd. We, therefore, do not find any infirmity in the impugned order. The Revenue s appeal is dismissed. It can be seen from the above reproduced findings in the case of A.S. Financial, the respondent was specifically providing the marketing services and display banners and equipments and other items were of the expenses of A.S. Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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