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TMI Blog2018 (8) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... aying Service Tax on the commission received by him from M/s Amway. It has further been alleged that the services provided by commission/ marketing agents are covered under the taxable category of 'Business Auxiliary Services' and therefore the appellant were asked by the Department to pay Service Tax amounting to Rs. 3,22,560/- under Section 731 of Finance Act, 1994 Penal Provisions under Section 77,78 of Finance Act, 1994 were also invoked against the appellant. The Ld. Counsel appearing for the appellant has contended that the matter is no longer re-intergra as this Tribunal in the case of Final Order No. 51818-51855/2015 dated 09/06/2015 has already laid down the principles with regard to the facts as involved in the present appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amway. Once the Amway products have been purchased by a Distributor from Amway, those products cease to belong to Amway, but belong to the Distributor and sale of these goods by the Distributor would not constitute service to Amway. For the same reason, any incentive or commission received by a Distributor from Amway for buying certain quantum of goods from Amway during a month can not be treated as the consideration received for promotion or marketing or sale of the goods produced by or provided by or belonging to the client, more so, as this commission is not linked to the goods sold by the Distributor, but is linked to the goods purchased by the Distributor from Amway during a month and is in the nature of volume discount. Therefore, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantifying the Service tax demand on the commission received from Amway on the volume of purchase made by the distributors sponsored /enrolled by a particular distributor i.e. the Distributor's sales group, these matters would have to be remanded to the Original Adjudicating Authority. 14. Another objection raised by the appellants in Appeals Nos. ST/138 and 139/2009, ST/406/2010, ST/522 to 525/2010, ST/257, 259, 433, 473, 502, 580, 1123, 1383, 1781 & 1802/2011, ST/56, 86, 126, 645/2012 and ST/1723-1724, 2337 and 2810/2012 and the respondents in Appeals Nos. ST/851 to 854, 863, 864, 865, 866, 867, 868, 869, 870 and 878/2012 is that the assessees are individuals and during the period till 30-4-2006, Service tax was chargeable only on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romoting sales/marketing of the products of Amway and they are not marketing or promoting any taxable service which is branded and the brand name belongs to another person. Marketing or sale promotion of branded products by a person/ commission agent does not amount to providing branded service by him and hence, marketing or sales promotion of a branded product does not come under the exclusion category as mentioned in the proviso to Notification No. 6/05-S.T. In this group of cases, the eligibility of the Distributors (assessees) for the exemption Notification No. 6/2005-S.T. has not been examined and for this purpose also, these matters have to be remanded to the Original Adjudicating Authority. 16. Another plea raised in these appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that on the question as to whether the activity of the assessees was taxable under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994, there was no scope for doubt. As held by the Apex Court in the case of Continental Foundation Joint Venture v. CCE, Chandigarh reported in 2007 (216) E.L.T. 177 (S.C.) when there is scope for doubt in the mind of an assessee on a particular issue, the longer limitation period, under proviso to Section 11A(1)cannot be invoked and in our view, the ratio of this judgement of the Apex Court is applicable to the facts of these cases. Therefore, the longer limitation period of 5 years under proviso to Section 73(1) of the Finance Act, 1994 would not be invokable and duty can be demanded only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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