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TMI Blog2012 (9) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant during the period August 2005 to March 2010 received commissions from M/s.Yuksom Breweries Ltd.(YBL), Sikkim, but failed to discharge Service Tax on the same. 3. The ld.Advocate appearing for the applicant has submitted that by an agreement dated 01.04.2006 between the applicant and M/s.YBL, the applicant are appointed as distributors of M/s.YBL in the Sikkim region. Accordingly they purchased the beer from M/s.YBL and sold the same to various retailers in the area. He has submitted that the relations between M/s.YBL and the applicant is on principal to principal basis and they cannot be treated as commission agent for M/s.YBL. Further he has submitted that they discharged sales tax and they were not required to pay VAT. Ld.Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s.YBL and the applicant, were deposited in the account of M/s.YBL; hence the transaction between M/s.YBL and the applicant cannot be said to be one sale and purchase, but the applicant had sold the goods on behalf of M/s.YBL to the retailers, and amounts received by them were commission and liable to Service Tax. 5. We have carefully considered the submissions and perused the records. We find that by an agreement dated 01.04.2006 between M/s.YBL and the applicant, the applicant was appointed as a sole distributor for marketing the products of M/s.YBL in the state of Sikkim on behalf of them. At clause 7 of the said agreement, it is mentioned that there shall be no margin to the distributors(i.e. the applicant) with regard to their busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a categorical finding by the ld.Commissioner that cash transaction to the tune of Rs.145 Crores in the Bank Account of M/s.YBL against a nominal amount of Rs.14 Crores in the Bank Account of the applicant. Also, we find that the entire investigation commenced while scrutinizing the balance sheet and ledger maintained by M/s.YBL wherein the amount had been paid to applicant was shown as commissions on sales and sales promotion expenses, a fact not controverted by the applicant. In these circumstances, we find, the applicant could not able to make out a prima facie case for waiver of entire amount of duty and penalty. The applicant did not plead any financial hardship. Keeping in view the interest of Revenue and the guidelines laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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