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TMI Blog2016 (3) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... its meaning in the VAT Laws. A letter dated 23.03.2000 addressed to the Appellant by BDA Ltd., shows that the appellant's service charges were fixed with reference to the quantum of products marketed by it. The debit advice annexed to the appeal shows that the consideration received was always linked to the quantum of sales effected. This evidence seems to lend support to the contentions of the appellant and in the absence of any specific finding in the impugned order or any allegation to the contrary in the Show Cause Notice and also during the period relevant to this appeal, there is no evidence to show that the appellant had indeed carried out any activity other than the activity of selling goods belonging to BDA Ltd. On this factual ground also, the appellant is entitled to succeed. Even if the appellant has rendered services relating to procurement of goods on behalf of BDA Ltd., or helped in collection or recovery of payments, it would remain entitled to the benefit of exemption. - Decided in favour of appellant with consequential relief - Appeal No. ST/389/12 - Final Order No. A/86650/2016-WZB/STB - Dated:- 6-1-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the real intent of agreement. It is the submission that appellant had to procure orders only from those stockist who hold valid permit/intent as the sale of IMFL/Beer are restricted and the impugned order has overlooked various clauses in agreement, and has considered the same as merely a marketing initiative; the adjudicating authority has read the agreement in isolation and has not considered it in a holistic manner. It is the further submission that the Notification No.13/03-ST grants exemption in respect of services rendered by the commission agents. Assuming that the appellant had rendered the services of commission agents, the appellant satisfy the pre-requisite for being a commission agent in terms of Notification 13/03-ST while the denial of said exemption Notification by the adjudicating authority is only on the ground that the appellant is doing more than the commission agents work. It is the submission that doing additional work as commission agent cannot deny the exemption available to the appellant. It is the submission that the adjudicating authority has not considered the binding Tribunals judgement. It is also the submission that the findings of the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant were not confined to sale only but covered various other services starting from arranging the production of goods by engaging bottlers/distillers upto collection of sale proceeds. The Commissioner proceeds on the premise that the benefit of the exemption is available to a commission agent who provides services only in respect of sale or purchase of goods. In our view, this is an incorrect reading of the Notification as the exemption under this Notification applies to all Business auxiliary services provided by a commission agent , and not merely to the services of selling or purchasing goods on behalf of the client. No doubt a commission agent as defined under this Notification is a person who provides service in relation to purchase or sale of goods, this is only for defining the eligibility criterion and is relevant only for determining whether or not an assesse claiming the benefit of this Notification is a commission agent or not. Once it is held that the assessee is a commission agent by virtue of being engaged in the activity of causing sale or purchase for a consideration which is linked to the quantum of sale or purchase, the benefit of this Notification will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the client covered specifically by clause (iv). The activity of collection/recovery of payment is also specifically covered under the inclusive part of the definition of Business auxiliary service. These services, if rendered by a commission agent are exempt under the Notification. 6.4 The Commissioner in Para 36 of the impugned order does not dispute that the appellant was engaged in the activity of selling IMFL/Beer for BDA Ltd. The Commissioner also does not dispute that the consideration which the appellant was to receive for such services was linked to the quantum of goods actually sold. Thus, the twin requirement of the definition of commission agent viz., that the agent should cause sale or purchase of goods on behalf of another person and that the consideration should be linked to the quantum of such sale or purchase, stand fully satisfied. In view of the specific definition of the expression commission agent in the Notification, we are not inclined to look at the common parlance meaning of the said expression or its meaning in the VAT Laws as argued by the Ld. Representative of the department. 6.5 We find that the Bangalore Bench of the CESTAT in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the consideration received by the assessee in that case was not merely based on the volume of sales. The Tribunal, in Para 12, rightly observed that such an arrangement was not covered under the Notification. No support can be drawn from this decision as in the present case, the commissioner has himself found in para 36 that the consideration received by the appellant was linked to the quantity of goods sold. 6.8 At this stage we may note that the Ld. Counsel for the appellant pointed out that though the agreement dated 10.12.1992 between the appellant and the BDA Ltd., contemplate that the appellant will help BDA Ltd., in procurement of liquor by appointing distillers/bottlers on behalf of BDA Ltd., no such activity of arranging appointment of distillers/bottlers between the appellant and the BDA Ltd., was actually carried out during the period July, 2003 to 08.07.2004 for which demand has been raised in the present case. It was submitted that that all the 16 bottlers appointed by the appellant on behalf of BDA Ltd., a fact cited in the order of the Commissioner, were appointed long ago and not during the 1year period to which the demand relates. Clause 6 of the agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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