2009 (3) TMI 123 - AT - Service Tax

Business Auxiliary Service Scope of Exemption Notification no. 13/2003 dated 20-6-2003 - appellants received commission based on the primary sales of beer and looking into the totality of the agreement - the appellants cause sale of the goods - The revenue s contention that the appellants are not commission agents is not acceptable - Once they are held to be commission agents, they will be entitled for exemption under Notification No.13/2003-ST during the relevant period. Held that demand is not sustainable.

Summary

Issues:
- Applicability of exemption Notification No.13/2003-ST to appellants providing services under 'Business Auxiliary Services' category.
- Determination of whether the appellants can be considered as commission agents based on the activities performed.
- Assessment of whether the appellants are entitled to the benefit of the exemption notification.

Analysis:
The appeals were filed against the Order-in-Appeal passed by the Commissioner of Central Excise, Customs & Service Tax. The revenue proceeded against the appellants for payment of service tax under 'Business Auxiliary Services' category. The contention was that the appellants were not covered by the exemption Notification No.13/2003-ST and demanded service tax. The lower authority confirmed the demands, imposed penalties, and demanded interest. The appellants argued that they were covered by the exemption notification as commission agents, but this was not accepted. The Commissioner (Appeals) upheld the order, stating that the appellants did not meet the definition of commission agents as per the notification. He considered them as marketing and promoting agents rather than commission agents, denying them the benefit of the notification.

The learned Advocate highlighted that the commission received by the appellants was based on the quantity of liquor sold as per the agreement. The revenue contended that the appellants performed activities beyond the scope of commission agents. Upon careful review of the case records and the agreement, it was observed that the commission received by the appellants was indeed based on primary sales of beer. Considering the totality of the agreement, it was determined that the appellants did cause the sale of goods. Therefore, the revenue's argument that the appellants were not commission agents was deemed unacceptable. Consequently, the appellants were held to be commission agents and entitled to the exemption under Notification No.13/2003-ST for the relevant period. The appeals were allowed with consequential relief, if any, granted.

In conclusion, the judgment clarified the applicability of the exemption notification to the appellants providing services under 'Business Auxiliary Services', emphasizing the determination of their status as commission agents based on the activities performed. The decision highlighted that the commission received by the appellants was linked to the quantity of goods sold, establishing them as commission agents eligible for the exemption.