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TMI Blog2019 (5) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... intelligence following which they started investigating the activities of the appellant. Also apart from analysing the purchase orders, tripartite agreement, balance sheets etc., Revenue also examined the Dy. General Manager of MMTC on 17.03.2008 and after gathering pieces of evidence, a SCN dated 23.03.2009 came to be issued. In the totality of circumstances therefore, the conclusion by the Revenue that there was wilful intent to evade tax cannot be faulted nor considered inconsistent with statutory prescription that justify invocation of extended period of limitation - extended period rightly invoked. Appeal dismissed - decided against appellant. - Appeal No. ST/644/2010 - FINAL ORDER No. 40680/2019 - Dated:- 26-4-2019 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Ms. S. Vishnupriya, Advocate for the Appellant Shri A. Cletus, ADC (AR) for the Respondent ORDER Per P. Dinesha A Show cause Notice (SCN) dated 23.03.2009 was issued to the assessee-appellant on the grounds that they are not paying service tax on the administrative charges and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant with the foreign supplier and its agent was for supply of coal exclusively to TNEB. This, according to the Revenue, fell under the category of Business Auxiliary Service (BAS) and procurement of goods or services which are inputs for the clients under Section 65(19) (iv) of the Finance Act, 1994, and accordingly liable for service tax w.e.f. 10.09.2004. In respect of the agency commission, the Revenue was of the view that the foreign agents are paid as commission agents and services rendered by commission agents are liable to service tax under BAS w.e.f. 09.07.2004 and therefore, the appellant is also liable to pay service tax on the commission paid to the foreign agents as per Rule 2 (1) (d) (iv) of Service Tax Rules, 1994 (STR), read with Section 66A of the Finance Act, 1994. Finally, the SCN proposed to demand service tax of ₹ 69,34,998/- under proviso 2 to Section 73 (1) of the Finance Act, 1994, along with applicable interest under Section 75 ibid, and penalties under Sections 76,77 and 78 ibid. 3. Ld. Commissioner of Central Excise, Chennai took up the adjudication proceedings thereafter and vide the impugned order dated 16.06.2010 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coal was not meant for the use of the appellant does not mean that the appellant did not purchase and sell coal. The fact that the transaction was a trading transaction did not mean it any less one, simply because the appellant was not the end user. These are purely sale/purchase transactions in which the title of goods is transferred in the name of the appellant on receiving the documents through the banking channels as per the terms and conditions of the contract entered into between the overseas supplier and the appellant. Thus, the risks and rewards are that of the appellant as the buyer of goods. In any transaction which involves transfer of title of goods, price risk, currency risk and other risks and rewards on such transactions cannot be in the nature of services provided. The administrative charge is also included by the high seas buyer, viz., TNEB while discharging the duty of customs. The high sea sale agreement dated 27.07.2005 entered into by the appellant with MFL stated that high sea sale price was for the sale of fertilizers. The supervision charges are the expenses initially borne by the appellant and subsequently r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 (148) ELT 535 (Tri.-Del.), the decision of the Hon ble Supreme Court in the case of Imagic Creative Pvt. Ltd. Vs. CC Taxes 2008(9) STR 337 (S.C) and also the decisions relied on by the Commissioner in the impugned order. 7.1 We have heard the rival contentions, perused various documents placed on the record and also gone through the decisions referred to during the course of the arguments. The agreements have been entered into, in the first place, by the appellant with TNEB/MFL and later on, the appellant floated a Global Tender apparently on behalf of TNEB/MFL, for supply of goods. One of the Tripartite agreements dated 09.06.2005 placed in the paper book is between M/s. Adani Global Pvt. Ltd. as seller, MMTC Ltd (the appellant) as buyer and M/s. Adani Exports Ltd. as seller s agent, for selling/buying of Steaming Coal of Chinese Origin in bulk of 500,000 MT and the price fixed for the same is US$ 73.00 PMT CNF FO Ennore Port. Clause 8 of the same agreement envisages Marine Insurance Premium to be charged by the seller at actuals subject to maximum USD 0.09 PMT and clause 9 brings in TNEB, to say that the seller agent (AEL) who co-ordinates with var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, 23 [but does not include any activity that amounts to manufacture of excisable goods.] 24 [Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this clause,- (a) commission agent means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person- (i) deals with goods or services or documents of title to such goods or services; or (ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; From the above definition, a service gets covered under BAS even for procurement of goods or services, which are inputs for the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation of the appellant in the case on hand is more or less similar. 11. The alternative contention urged on behalf of the appellant is that the proceedings initiated by the Revenue are barred by limitation and consequently invocation of extended period of limitation was bad. We find it difficult to accept the above pleadings since, the appellant had never got ownership controls over the goods in question and the copies of sale invoices placed on record do not inspire us to even entertain a tiniest belief that the appellant did make sale to TNEB/MFL. Last but not the least, the appellant has also claimed that in its sales tax returns it had shown the entire invoice price including administrative charges and then has been offered to State tax but claimed as exemption. Sales Tax Assessment order issued by the State Revenue Authority placed on record has allowed appellant s claim for exemption but the same cannot be held as having been subjected to sales tax since it is a threshold exemption. Typically, HSS is neither liable to customs duty nor under sales tax and therefore just because the invoice price was offered to sales tax, claimed as exemption, would not ipso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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