2008 (11) TMI 109 - AT - Service Tax

Business auxiliary service - respondents promote the entire product range of the principal which involves identification of customers explain the utility of the product obtain samples from the principal and provide for trial to customer - transaction thereafter take place between principal and customer directly - respondent gets a fixed commission only after the sales takes place and payment is realized - respondent is a commission agent & entitled to exemption under notification No. 13/2003

Summary

Issues:
1. Appeal against Commissioner (Appeals) order regarding service tax refund claim.
2. Determination of whether the respondent qualifies as a commission agent for exemption under Notification No. 13/2003.

Analysis:
1. The appeal was filed by the Revenue against the Commissioner (Appeals) order concerning a service tax refund claim made by the respondent. The respondent was appointed by a company to promote sales and book orders, with goods being dispatched directly to customers by the company. The respondent paid service tax but later claimed a refund based on exemption for commission agents under Notification No. 13/2003. The original adjudicating authority rejected the refund claim and imposed service tax demand, penalties, and interest. However, the Commissioner (Appeals) set aside this order in favor of the respondent.

2. The main issue revolved around determining whether the respondent qualified as a commission agent for exemption under Notification No. 13/2003. The Revenue argued that the respondent's activities constituted business auxiliary services, including promoting sales, ensuring creditworthiness, and managing distribution, which fell outside the scope of the exemption. On the other hand, the respondent contended that they were solely commission agents who received payment only upon actual sales, without involvement in goods handling or sales transactions. The Tribunal analyzed the facts and concluded that the respondent's role primarily aligned with that of a commission agent. The respondent's activities focused on facilitating sales between the company and customers, with commissions earned only upon successful transactions and payments. As the core function was commission-based, the Tribunal upheld the Commissioner (Appeals) decision to grant the respondent the benefit of exemption under the cited notification.

In conclusion, the Tribunal rejected the Revenue's appeal, emphasizing that the respondent's role as a commission agent, with incidental activities related to sales promotion, qualified for exemption under Notification No. 13/2003. The decision highlighted the distinction between commission agency services and broader business auxiliary services, ultimately supporting the respondent's claim for exemption and affirming the Commissioner (Appeals) ruling in favor of the respondent.