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TMI Blog2016 (11) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... enue s case. Admittedly, the customer is brought to the principal by the appellant and the commission is paid to the appellant only when the sale / purchase is materialized. Whether negotiation is done by the principal or by the appellant will not have any effect on the fact of getting commission only on the finalization of the sale / purchase. We find that an identical situation was considered by the Tribunal in the case of Commissioner of Central Excise Vadodara Vs. M A Menon & Co. [2008 (11) TMI 109 - CESTAT, AHMEDABAD] wherein the Tribunal held that in as much as the assessee was primarily engaged in the sale activity and gets his commission only when the sale materializes he has to be held as commission agent. As much as the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue by entertaining the view that the said activities amount to promoting business of EML and as such falls under the category of Business Auxiliary Services , initiated the proceedings against them resulting in confirmation of demand by the original Adjudicating Authority and upheld by Commissioner (A). 4. Hence the present appeal. 5. We have seen the agreement which provides for payment of commission at the rate of 7.5% or FOB value of the goods exported. No commission is payable to the appellant if the sale does not take place. In fact, Commissioner (A) has examined the scope of the commission agent and has observed as under: I find that the services provided by the Commission agent has been exempted vide notification no.13/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 65 (19) of the Act. Thus in view of the above, I uphold the orders passed by the adjudicating authority and reject the appeal. 6. As seen from the above, the appellate authority is not disputing the fact that the appellant is satisfying condition (ii) and (iii) of the above definition but has not held the appellant to be Commission agent because he only informs the principal about the customers and his principal himself enters into a contract with the customers. In our views, such a distinction made by Commissioner (A) does not advance the revenue s case. Admittedly, the customer is brought to the principal by the appellant and the commission is paid to the appellant only when the sale / purchase is materialized. Whether nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main activity, the Revenues could not have been linked totally to the sale of the product. We agree with the view taken by the commissioner that primarily the respondent is a Commission Agent and other activities are to incidental to commission agency and therefore, their claim for benefit of exemption under the notification cited above is to be allowed. In view of the discussions above, the appeal filed by the Revenue is rejected. 8. Further, in the case of CCE Ahmedabad Vs. Somani Exports 2009 (13) STR 562 (Tri-Ahmd). It was again observed that in as much as the assessee gets the commission only when the product stands purchased by the Customer, they have to be held as commission agent, irrespective of the fact that for procuring su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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