TMI Blog2023 (8) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... - on perusal of this decision, it is settled that in case of providing a Commission Agent servicer, is not a branded service. Thus, it can be seen that Commission Agent service provided by the appellant cannot be treated as branded service. Accordingly, the exemption Notification No. 6/2005-ST cannot be denied - the demand confirmed by the lower authorities denying exemption Notification 6/2005-ST is without any basis - appeal allowed. - SERVICE TAX Appeal No. 10441 of 2013-DB - FINAL ORDER NO. 11638/2023 - Dated:- 2-8-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Vipul Khandar, Chartered Accountant for the Appellant Shri P. Ganesan, Superintendent (AR) for the Respondent ORDER The issue involved in the present case is that whether the appellant are eligible for small scale service provider exemption under Notification No. 6/2005-ST for the period 2005-06 to 2006-07 in respect of their service i.e. Commission Agent service under Business Auxiliary Service. The case of the department is that the appellant has provided service of Business Auxiliary Service to their clients such as M/s. Jet Airways, M/s. Cathay Pacific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005-S.T., dated 1-3-2005 and Notification No. 33/2012-S.T., dated 20-6-2012. (b) Whether the extended period of limitation is invocable or not? (c) Whether the best judgment under Section 72 of the Finance Act, 1994 has been assessed correctly or not? (d) Whether the appellants are liable to pay service tax on the gross value of the services provided by them or not? (e) Whether the appellants are entitled for Cenvat credit of service tax paid by the MSO or not? 12. Whether the appellants are providing branded service or not? Consequently they are entitled for exemption under Notification No. 6/2005-S.T., dated 1-3-2005 and Notification No. 33/2012-S.T., dated 20-6-2012. In this case, the appellants are cable operator and providing cable services to the subscribers on the basis of signals received from the MSO. The subscriber has not asked for any brand for providing the said services. In fact, the appellant is also not providing any branded service as MSO is supplying signal to the appellants which has been transmitted to the subscribers, in that circumstances, there is no relation of brand name to the ultimate customers. Therefore, we hold that the appellants ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by indicating a connection in the course of trade between the aforesaid products and the manufacturer of those products. Further, in the case of Maheshwari Industries (supra), the Hon ble Apex Court observed the criteria for use of brand name which is as follows :- (1) It must be a name or mark such as symbol, monogram, label, signature or invented word or writing; (2) It must be used in relation to such specified goods, for the purpose of indicating a connection in the course of trade between such goods and some person using such name or mark, with or without any indication of the identity of that person; and (3) The mere fact that the specified goods manufactured by a person bear a brand name or trade name of another manufacturer, is not sufficient to conclude that those goods are manufactured by such other manufacturer or trader. 19. Therefore, it is clear that a person may be taken to be manufacturing specified goods, bearing a brand name or trade name only if the name, mark or symbol used as such, is intended to indicate a connection in the course of trade between such specified goods and some person using such mark or name. If the use of the brand name or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cable service from Cable Television Network (Regulation) Act, 1995. Considering scope of definition under Section 2(aa) of the said Act there is a possibility of bona fide belief for non-tax liability. Considering the ratio followed by the Tribunal in the abovementioned cases and also considering the facts of the present case, I find that it is a fit case for invoking the provision of Section 80 for waiver of penalties imposed on the appellant. Accordingly, the penalties are set aside and the appeal is allowed only to that extent. Therefore, no penalty is imposable on the appellants. (c) Whether the best judgment under Section 72 of the Finance Act, 1994 has been assessed correctly or not? In this case, it is a fact on record, the appellants were not given time of supply the data of their activity and assessment has been done on the basis of the data supplied by the MSO which is not correct, therefore, we hold that the assessment under Section 72 of the Finance Act, 1994 is not correct. In that circumstances, the impugned demand is not sustainable, but the appellants are directed to provide the data for their activity within the period of limitation to the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he MSO is paying service tax, therefore, the signal provided by the MSO to the appellant is an input services for the appellants. Therefore, the service tax paid by the MSO is available as Cenvat credit to the appellants. In these circumstances, we hold that the appellants are entitled to avail Cenvat credit of the service tax paid by the MSO. 13. In view of the above, the following order is passed :- (a) the appellants are entitled for exemption under Notification No. 6/2005-S.T., dated 1-3-2005 and Notification No. 33/2012-S.T., dated 20-6-2012. (b) the extended period of limitation is not invocable. Consequently, no penalty is imposable on the appellants. (c) the appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail Cenvat credit of service tax paid on the amount remitted to the MSO. (d) The adjudicating authority shall quantify the demand for the period within the period of limitation on production of data of services provided by the appellants of cable services to the subscribers within the 30 days of receipt of this order on which the appellant shall pay the service tax if payable. 7 . Relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Business of Auxiliary Service. The appellant started rendering Business Auxiliary Service to the M/s. HFCL with effect from 1-4-2006 and availed the benefit of SSI exemption Notification No. 6/2005-S.T., dated 1-3-2005. The same was denied to the appellant on the ground that the appellant is providing branded services, therefore, they are not entitled for exemption under Notification No. 6/2005-S.T., dated 1-3-2005. 3 . Heard the appellant and considered the submissions. 4 . We find that the facts are not in dispute that the appellant is a provider of services on behalf of M/s. HFCL and receiving commission from them. The appellant receiving collections under the brand/trade name of M/s. HFCL and the appellant is rendering Business Auxiliary Service to M/s. HFCL under its own name. Therefore, the appellant is not providing any branded services. In that circumstance, the benefit of exemption under Notification No. 6/2005-S.T., dated 1-3-2005 cannot be denied to the appellant. Therefore, we do not find any merits in the impugned order and the same is set aside. 5 . In the result, the appeal is allowed with consequential relief, if any. 6. From the above decisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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