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TMI Blog2016 (12) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No.13/2003 provides exemption to business auxiliary services provided by a commission agent from the service tax leviable thereof. However, the said notification clearly defines the commission agent to mean a person who causes sale or purchase of goods on behalf of another person for a consideration which is based on quantum of sale or purchase. In the instant case, it is clear that while the consideration is based on the quantum of sale, the services provided is not ‘sale or purchase of goods” but is in the nature of customer care on behalf of Venco/VRB. Thus, the notification No.13/2003 is not applicable in respect of Veterinary services and Laboratory Analysis and Testing services - the demand is sustainable. However, it nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Services . a) Promotion, marketing and selling of chicks for and on behalf of M/s. Venco Research Breeding Farm Pvt. Ltd. (hereinafter called as Venco .) and M/s. Venkateshwara Research Breeding Farms Pvt. Ltd. (hereinafter called as VRB ) who are their group companies. b) Veterinary services such as services of veterinary doctors to Venco and VRB. The doctors shall provide services in connection with brooding, growing and laying of birds including creation of proper hygienic environment, medication, vaccination and feed recommendation, etc. c) Laboratory Analysis and Testing services such as conducting various laboratory analysis and tests in respect of the birds and relation to the brooding, growing, laying, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was a commission for sale of goods which was exempted vide Notification No.13/2003. He also relied on the decision of the Tribunal in the case of Kathuria Financial Services - 2014 (36) STR 662 (Tri-Del) in support of invocation of Section 80 by the Commissioner. Learned Counsel argued that extended period has been invoked for the period 2003-2004 by issuing a show-cause notice in the year 2009. He argued that from 2004 to till 2009 the appellants have been paying tax on the said amounts received by them and therefore, extended period cannot be invoked against them. 4. Learned AR for the Revenue argued that Section 80 has been wrongly invoked in the instant case. It has been argued that the appellants have not paid the duty dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd agreement as well as the consideration therefor is set out hereafter. The scope of your work and services is divided into the following three categories: a) Selling arrangement b) Veterinary services; and c) Laboratory testing and analysis services In respect of each of the above the broad details of the work and services would be as listed in Annexures 1,2 and 3 respectively. The consideration payable to you for the aforesaid services would be as under: a) Selling arrangement - commission @ 10% of the sale value of parents stock, as reduced by returns, rejections, taxes, etc. (hereafter referred as the sale value ) b) Veterinary services - charges @ 3% of the sale value. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding services to Venco but also to the customers of Venco on behalf of Venco. 7. In 2003 when the business auxiliary service was introduced it was defined as follows: (19) business auxiliary service means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services, and includes services as a commission agent, but does not inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on quantum of sale or purchase. In the instant case, it is clear that while the consideration is based on the quantum of sale, the services provided is not sale or purchase of goods but is in the nature of customer care on behalf of Venco/VRB. Thus, the notification No.13/2003 is not applicable in respect of clauses (b) (c) of the contract. 9. In view of the above, the demand is sustainable. However, if needs to be limited to the quantum of service provided to customers of Venco/VRB. In so far as services are received by Venco/VRB it will not fall under business auxiliary service. 10. Revenue has challenged the invocation of Section 80. It is seen that there is no doubt that part of the services provided under clauses (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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