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TMI Blog2015 (11) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation to the said notification clarifies that Commission Agent is one who causes sale or purchase of goods on behalf of another person for a consideration, which is based on the quantum of such sale or purchase. - Respondent was already registered with the Service Tax authorities and availing the benefit of exemption notification 13/2003-ST and therefore, it was within the knowledge of the Respondent that this exemption notification was amended by Notification No. 08/2004-ST dated 09.7.2004. It is noted that they have started paying service tax from 10.09.2004 but there is no reason as to why they were not paying service tax from 09.7.2004. We have also noticed that respondent had not filed monthly ST-3 returns during the period 01.7.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that they were eligible for the benefit of exemption Notification No. 13/2003-ST dated 20.6.2003. The Respondent also contested the demand on limitation. The adjudicating authority confirmed the demand of service tax alongwith interest and also imposed penalties under various sections. The Commissioner (Appeals) set-aside the adjudication order and allowed the appeal filed by the Respondent on merit. 3. Learned Authorised Representative for the Revenue reiterates the grounds of appeal. He submits that the Commissioner (Appeals) held that the Respondent carried out promotional activities of the products. It is submitted that promotional activities would not cover sale of goods under Notification No. 13/2003-ST (supra). He drew the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as yarn and textile machinery. It is seen from the reply of the show cause notice that the commission was paid on principal to principal and case to case basis, depending upon various factors and quantum of commission is depending on such sale or purchase by the customer from the principal. It is categorically stated that they received commission only on sale of materials and payment is received from the customer. Notification No. 13/2003-ST (supra) extended the exemption to Business Auxiliary Services provided by a Commission Agent from service tax leviable thereon, under Section 66(2) of the Finance Act, 1994. Explanation to the said notification clarifies that Commission Agent is one who causes sale or purchase of goods on behalf of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are required to promote 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 and if the customer finds the product suitable - transaction thereafter take place between principal and customer directly and respondent gets a fixed commission only after the sales takes place and payment is realized. They also submit a report about the customer to the principal. They dont hold stock of any product on behalf of the company. From the facts enumerated above, it is clear that the respondents get commission only when the sale materializes and payment is received from the customers. However, if business auxiliary services was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered with the Service Tax authorities and availing the benefit of exemption notification 13/2003-ST (supra) and therefore, it was within the knowledge of the Respondent that this exemption notification was amended by Notification No. 08/2004-ST dated 09.7.2004. It is noted that they have started paying service tax from 10.09.2004 but there is no reason as to why they were not paying service tax from 09.7.2004. We have also noticed that respondent had not filed monthly ST-3 returns during the period 01.7.2003 to 09.09.2004. The adjudicating authority observed that Respondent suppressed the material fact regarding receipt of Commission regarding the services provided by them, in our view, it is sufficient to construe suppression of fact with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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