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TMI Blog2024 (7) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... le namely CPC Global but in carrying forward the same observations made in the previous order the subsequent order was passed with reference to those two paragraphs noted in Lubrizol Advanced Materials India Pvt. Ltd. and R.S. Granite Machine Tools Pvt. Ltd. respectively by holding that consideration received by the Appellant from M/s CPC Global as a service provider was not directly linked with the sale of products by the selling company in India. Further both are treated as independent entities only in view of general Clause prescribed under 10.1 that explicitly puts the Appellant in the nature of independent contractor agent and not an salary paid agent of CPC Global. This being the facts on record, the decisions of Co-ordinate Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving consideration in the form of commission which was calculated on certain percentage of sales taking place in India (as per para 5 of terms of agreement between Appellant and CPC Global). Holding the same to be intermediary services as provided under Rule, 2(f) of the POPS Rules, 2012 read with Rule, 9A periodic denial of refund were made by the Respondent-Department since July, 2012. This appeal pertains to the period from October, 2015 to June, 2017 concerning denial of refund that got confirmed vide Order-in-Appeal dated 11.10.2018, as referred above. 3. During course of hearing of the appeal learned Counsel for the Appellant Ms. Rinki Arora submitted that issue is no more res integra in view of final order passed in Appellant s own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n POPS Rules, 2012, CENVAT Credit Rules, 2004 and the relied upon judgments in which the earlier demand was passed by this Tribunal for different periods. As could be noticed from the said order appeal of the Appellant for the period from July, 2012 to September, 2015 was disposed of after bifurcating it into two periods up to 01.10.2014 and after 01.10.2014, from which day definition of intermediary had undergone change with inclusion of supply of goods in the said Rule, 2(f) of the POPS Rules, 2012 and for the period post 01.10.2014, reliance was placed by this Tribunal on its previous order passed in the case of Lubrizol Advanced Materials India Pvt. Ltd. Vs. Commissioner as reported in 2019 (22) GSTL 355 (Tribunal) and R.S. Granite Mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal that apart from commission received on sale of products, there was no other consideration flowing from the principle to the agent, It reads: 5. Commission In full compensation for the services rendered hereunder, CPC Global shall pay Agent a commission in accordance with Exhibit B1 on all sales of products by the selling Companies to customers in the Territory on which Agent shall have provided services hereunder at the request of CPC Global. Commissions shall be calculated on the total invoice, less any rebates, freight, handling charges and other costs (insurance, customs duties, taxes, etc.) that are included in the total invoice of the Product. Unless otherwise agreed, Commissions shall be paid to Agent in the currency of the invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and not an salary paid agent of CPC Global. This being the facts on record, we would have disagree with the decisions of Co-ordinate Bench of this Tribunal and referred the matter to the Larger Bench, had appeal against one of such orders not travelled up to the Hon'ble Supreme Court and resulted in denial of admission of the appeal filed by the Respondent-Department against the said order. Having regard to the newly introduce Clause 26A read with Clause 29A of Article 366 of the Constitution of India that puts services under the meaning as anything other than goods (w.e.f. 08.09.2016) and tax on sale or supply of goods under Clause 29A takes the activity out the Service Tax Net, and also being guided by the decision of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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