TMI Blog2025 (1) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... would amount to double taxation which is not permissible in law. Secondly, we find that the appellant is only engaged in purchase and sale of sim cards and recharge coupons and his relationship with BSNL is of principal-to-principal basis. The appellant cannot be termed as an agent of BSNL.'
Conclusion - The appellant was not liable for service tax on the commissions or incentives received from Vodafone.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... s and recharge vouchers is definitely covered under the scope of Business Auxiliary Service as Commission Agent as they were working on Principal - Agent basis. It is also seen that Agency in law connotes relationship which exists where one person has an authority or capacity to create legal relationship between a person occupying the position of principal and third parties; that the essential feature of an agent was his power of making the principal answerable to third person viz. enabling the principal to sue third parties directly or render him liable to be sued directly by the third party; that the test of the agency was whether the person purporting to enter into transaction on behalf of the principal i.e. to create, modify or terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the Commissioner (Appeals). 6. Case has been called out but no one has appeared on behalf of the appellant. 7. Shri Harsh Vardhan, learned authorized representative appearing for the department has very fairly stated that the issue in this appeal has been settled in favour of the appellant by a Division Bench decision of this Tribunal in Chotey Lal Radhey Shyam vs. Commissioner of Central Excise and Service Tax, Lucknow [2015(11)TMI 979-CESTAT Allahabad], which decision was upheld by the Allahabad High Court in Commissioner Central Excise, Lucknow vs. M/s.Chotey Lal Radhey Shyam [2017(9) TMI 509-Allahabad High Court]. Learned authorized representative has also pointed out that the issue involved in this appeal has also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court to challenge the aforesaid order of the Tribunal was dismissed by judgment dated 30.08.2017 after considering the earlier decisions of the Tribunal as well as decisions of the High Court.
10. The subsequent two decisions of the Tribunal in True Telecom and Ascent Poly Films also rely upon the decision of the Tribunal in Chote Lal Radhey Shyam.
11. In view of the aforesaid decisions of the High Court and the Tribunal, it has to be held that the Commissioner (Appeals) was not justified in confirming the demand of service tax on the appellant.
12. The order dated 08.03.2018 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside. The appeal is, accordingly, allowed. X X X X Extracts X X X X X X X X Extracts X X X X
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