9911796707
TMI Blog2015 (9) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit wrongly taken) along with interest. 2. The facts of the case are as under: The appellant was engaged in sale and retail redistribution of IMFL/beer/other drinks for its clients which were various liquor companies apart from undertaking marketing of imported liquor on its own behalf. The appellant was maintaining depot/warehouse on behalf of its clients. The primary adjudicating authority after scrutiny of the agreements which the appellant had entered into with its clients held that the appellant was providing Business Auxiliary Services and was not eligible for the benefit of Notification No.13/2003-ST, dated 20.6.2003 and accordingly confirmed the impugned service tax demand along with interest and penalty. As regards the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for operating a depot in the Territory for stocking, trading and distribution of its products. (f) To register KAM under the local Sales Tax Act (LST) and also under the Central Sales Tax Act (CST). (g) To ensure compliance by KAM with various regulations of Local and Central Sales Tax Acts and Rules, COMMISSION AGENT agrees to maintain statutory records at the depot and also to attend to various functions/matters as mentioned in Annexure A. (h) To adhere to the general procedure of operation as described by KAM in Annexure B. (i) To maintain statutory and proper books of account and records, and to submit appropriate reports/returns as required under any local laws or regulations in force and which KAM is required to comply with. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand wise fixed commission of Rs. 125/- per case on Smirnoff Vodka, Smirnoff Twist, Archers, Brakc & White and Vat 69 only and Rs. 35/- per case on Gilbeys Gln on total monthly sales, brand wise of each of the product (subject to condition of tax at source, if applicable under the Indian Income Act) on all sales effected from the Depot under this Agreement. The brandwise commission fixed above,can however be varies after mutual discussion agreements for any/all the brands and such changes will be formalized in writing. As the essential issue involved in this case is whether the appellant was entitled for the benefit of Notification No.13/2003-ST it is convenient to reproduce the said Notification here: In exercise of the powers co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that would not debar it from being called commission agent as the said Notification neither expressly nor impliedly states that a commission agent should not render any service which is not within the purview of a commission agent. 6. The notification exempts business auxiliary services provided by a commission agent. In other words, so long as the appellant provided business auxiliary services (even if such services did not strictly fall within the purview of the role of a commission agents) it was eligible for the benefit of the said notification. 7. We find that primary adjudicating authority has denied the benefit of Notification No.13/2003-ST to the appellant essentially by noting as under: 21.2 However, if a service provider is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No.13/2003 dated 20.6.2003. The aforesaid observations/ inferences of the primary adjudicating authority are fallacious/ untenable because (i) The definition of commission agent in Notification No. 13/2003-ST nowhere stipulates that a commission agent should primarily cause sale. (ii) There is nothing in the said Notification to imply that a commission agent to be eligible for the benefit of the said notification should not render business auxiliary services which are beyond the scope of function of commission agent. (iii) The adjudicating authority has in effect conceded that the appellant has provided certain business auxiliary services which are clearly within the ambit of the role of a commission agent. The notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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