TMI Blog2008 (9) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner - ST/234 OF 2007 - ST/262 OF 2008 - Dated:- 25-9-2008 - JUSTICE S.N. JHA, PRESIDENT AND M. VEERAIYAN, TECHNICAL MEMBER Fateh Singh for the Appellant. B.L. Narsimhan and P. Vasudevan for the Respondent. ORDER Justice S.N. Jha, President. - This appeal by the revenue is directed against the order-in-appeal setting aside the order of the adjudicating authority by which the refund claim of the respondent had been rejected. The Commissioner (Appeals) while upholding the case of the respondent directed them to produce relevant documents before the adjudicating authority to ascertain the refundable amount with a corresponding direction to the adjudicating authority to consider the refund claim in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner also placed reliance on Board's Circular No. 66/ 15/2003-ST, dated 5-11-2003 by which the Central Board of Excise Customs (CBEC) had clarified that the services provided by the mutual fund agents are primarily in the nature of services of commission in relation to services under clauses (ii) and (iv) of section 65(19) and hence, they would be liable to pay service tax under the category 'Business Auxiliary Services'. The appellate authority found that Board's Circular No. 66/13/2003-ST, dated 5-11-2003 stood quashed by the Delhi High Court in the Writ Petition filed by M/s. Bajaj Capital Ltd. In view of the decision of the High Court, the commission received on account of sale and purchase of units of mutual fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation or prospective customer and public relation services. 4. The respondent rely on Notification No. 13 /2003-ST, dated 20-6-2003 which runs as under: In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the business auxiliary services provided by a commission agent from the service tax leviable thereon under sub-section (2) of section 66 of the said Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration and, therefore, a commission agent, he would be entitled to the benefit of exemption under Notification No. 13/2003-ST. It is true that section 2(7) of the Sale of Goods Act does not specifically refer to 'mutual fund units', but that is apparently because when the Act was enacted in 1930, the concept of mutual fund schemes was not known. Mutual fund schemes, in our opinion, would stand at par with stock and shares for the purpose of section 2(7) of the Sale of Goods Act and, therefore, the mutual fund units have to be given same treatment available to sale and purchase of goods' under Notification No. 13 /2003-ST. As seen above, the definition of 'goods' in section 2(7) of the Sale of Goods Act - which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Delhi High Court, therefore, cannot be said to be erroneous. 8. In any view, we have given doubts if the activity involved in the sale and purchase of units of mutual fund schemes would fall under clauses (ii) (iv) of section 65(19). The said clauses refer to 'services'. The mutual fund units being 'goods' as per the definition under section 65(50) of the Finance Act, 1994 read with section 2(7) of the Sale of Goods Act, 1930, would fall under clause (i) of section 65(19), namely, promotion or marketing or sale of goods. But as the 'Business Auxiliary Service' provided by a commission agent by way of sale and purchase of goods' stands exempted under Notification No. 13/2003-ST, the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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