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TMI Blog2007 (4) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... m in his godown and sell them at prices indicated by M/s. Hindustan Lever Ltd. The sale proceeds are remitted to Hindustan Lever Ltd. on a weekly basis, after keeping the agent's commission. 2. Under the impugned order. Commissioner (Appeals) set aside the service tax demand of about Rs. 19,000.00 made on the respondent agent. The demand had been made by treating it as a "clearing and forwarding agent". The Commissioner set aside that finding and held that a commission agent came within the scope of "Business Auxiliary Services", another service subject to service tax during the relevant period and that commission agents were exempt from duty during the relevant period. 3. The present appeal of the revenue, contends that in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the respondent would submit that revenue's contention cannot arise at all since "commission agent" remains specifically included in the definition of another service namely "Business Auxiliary Services". He would also point out that "commission agent" remains defined under "Business Auxiliary Services" as a person, inter alia, 'dealing with goods'. It is his contention that mere receipt of the goods and storing it before sale would not convert a commission agent into a consignment agent or a clearing and forwarding agent. It is also being pointed out that, to attract the provisions of clearing and forwarding agent, a consignment agent has to perform the function of clearing and forwarding the goods and a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns by the agent. Clause 15 stipulates that the commission agent shall send the sale price to the company, on a weekly basis, after keeping its commission. Clause 17 states that the commission shall be on a ex-factory basis and Clause 18 permits the agent to make local delivery to his customers and to charge the cost of such despatches. The revenue's contention is that these clauses make the relationship one of clearing and forwarding agency. Learned SDR would emphasis Clause 12 in particular as it states that the agent will despatch the products to destinations either by rail or by steamer etc. and he shall have responsibility for any damage, defect or deterioration in the course of such transit. The contention of the learned SDR i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition of "Business Auxiliary Services", specifically mentions commission agent as covered by "Business Auxiliary Services". The definition also defined commission agent as "any person who acts on behalf of other persons and causes sale or purchase of goods for a consideration and include any person who, while acting on behalf of another person (i) deals with goods". Thus, the definition of commission agent includes a person who "deals with goods", therefore, the contention of the learned SDR that a commission agent does not physically deal with goods, and upon dealing with the goods, he becomes a clearing and forwarding agent is contrary to the statutory provisions. Commission agents were also exempt from service tax under Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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