9911796707
TMI Blog2013 (11) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 passed by Commissioner of Central Excise, Delhi II is the relief sought in these stay applications. Show cause notice dated was issued to the petitioner/appellant/assessee proposing levy of service tax, interest and penalties. According to the show cause notice, the petitioner received two categories of Services, both classified as Business Auxiliary Service. One category of service, received by the petitioner was from an overseas corporate entity M/s Olam International ltd., Singapore, of which the petitioner is a 100% subsidiary. Another category of service is agency commission remitted by the petitioner in foreign currency for facilitating export of cotton, rice, cashew and sesame claimed to be agricultural produce by the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,04,550 /- and Rs.66,77,289/- respectively and the assessed service tax attributable to the category of agency commission is Rs.8,14,398/- and Rs. 33,307/-. 5. In respect of agency commission paid by the petitioner to agents abroad for services provided in relation to the export business of the petitioner's agricultural produce, the petitioner claimed benefits of exemption Notification No.8/2004-ST dated 9.7.2004, a notification issued in modification of an earlier Notification No.13/2003-ST dated 20.6.2003. The claim for exemption was negatived by the adjudicating authority. 6. Prima facie we are satisfied that the adjudication order is in error to the extent benefits of exemption under Notification No.8/2004-ST for the agency commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No.13/2003-ST, business auxiliary service provided by commission agents was exempted from the liability to tax. By Notification No.8/2004-ST, the exemption was restricted to business auxiliary service provided by commission agents in relation to sale or purchase of agricultural produce. Clause (ii) appended to the existing Explanation (added by the amendment) defines 'agricultural produce' as meaning: "any produce resulting from cultivation or plantation, on which either no further processing is done or such processing is done by the cultivator like tending, pruning, cutting, harvesting, drying which does not alter its essential characteristics but makes it only marketable and includes all cereals, pulses, fruits, nuts and vegetables, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority that commission paid by the petitioner to its overseas agents for facilitating export of rice, sesame seeds, cashew nuts etc. is not entitled to the benefit of exemption Notification No.8/2004-ST, is unsustainable. 9. In so far as the category of corporate guarantee commission is concerned, it is clear from the statement of the General Manager of the petitioner made on 30.12.2009 (adverted to in para 4 of the adjudication order), that this guarantee was provided by the Singapore corporate entity, to facilitate lending by Indian banking institutions to the petitioner. Prima facie, such corporate guarantee constitutes a service provided by the Singapore entity to the petitioner for facilitating its business for procurement of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.07 in view of the interim order in Kaveri Agri Care Pvt. Ltd. vs. C.S.T., Mysore reported in 2011 (22) STR 220 (Tri-Bang.), this Tribunal found considerable merit in the submission of the appellant therein that corporate guarantee provided to a bank for loans taken by another entity falls within Section 65(12) of the Act and not under BSS as defined in Section 65(104(c). We are persuaded to follow this interim order for the reason that provision of corporate guarantee clearly falls outside banking or financial services. 12. On the aforesaid analyses, we grant waiver of pre--deposit and stay all further proceedings pursuant to the adjudication orders impugned in these two appeals, on condition that the petitioner remits Rs.2 ,83,04,550 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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