TaxTMI 
TaxTMI 
2015 (7) TMI 891
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....les Promotion, Marketing and After Sales and Services etc., to their clients in terms of the agreement between the parties. A show cause notice dated 1.9.2004 was issued by the Asstt. Commissioner, Central Excise & Customs, Anand, proposing a demand of Service Tax alongwith interest and to impose penalty under the category of Business Auxiliary Services (BAS) for the period 1.7.2003 to 31.3.2004. The show cause notice was issued on the basis of agreement between the appellant and one of the clients viz., M/s EIMCO Elecon (I) Ltd, Vallabh Vidyanagar. 2.1 Officers of the DGCEI, Regional Unit, Vadodara, investigated the matter and a show cause notice dated 20.10.2004 was issued by the Dy. Director of Directorate General of Central Excise In....
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....lf of the appellants submits that they were rendering services to their clients as "Commission Agent" for the purpose of sale of the goods. They entered into agreement with their clients as Commission Agents, which was termed as Dealers Agreement. The agreement would clearly indicate that they were rendering the services to their clients as Commission Agent for the purpose of sale of goods and there was incidental activities in relation to the said sale. He drew the attention of the Bench to the relevant portion of the agreement to substantiate that the predominant character of agreement is sale of goods and therefore they are eligible for the benefit of exemption of Notification No 13/2003-ST(supra). He is not disputing the classification ....
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..... ST/10408/2013 ( i.e., 2nd appeal) the Learned Advocate submits that in the earlier show cause notice, the adjudicating authority confirmed the demand of Service Tax under the category of BAS and the confirmation of demand of tax on the same period for the same activity under the category of C&F agent cannot be sustained. He relied upon the decision of the Tribunal in the case of CCE, Mumbai vs K C Shah [2004(171)ELT.467 (Tri. Mum.)]. He further submits that the agreements disclose the activities of sale of goods in pre-dominant nature and handling of the goods is incidental thereto. It is submitted that agreement should be read as a whole and the substantial predominant nature of activities would prevail rather than incidental activities.....
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....t is submitted that the agreement should be read with proper perspective, in so far as, in the present case, the appellant entered into an agreement for sales and services in respect of special type of equipments, machinery. 5.1 He placed copy of the letter No F. Anand/STC/EMICI/2014-2015/747 dtd 18.5.2015 of the Joint Commissioner, Central Excise, Customs and Service Tax, Anand, addressed to Additional Commissioner (AR), CESTAT before the Bench. It is stated in the said letter that the demand of tax for the period prior to 1.7.2003 would be classifiable under C&F Agent Service and the subsequent period would be classifiable under BAS Services which was introduced in the Service Tax net on 1.7.2003. 5.2 He submits that the Adjudicatin....
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....their own right and covered under Clause 3 (iii) and (iv) of the definition of BAS. Clause 3(iii) and (iv) of the definition of BAS provides any Customer Care Service provided on behalf of the client or any incidental or auxiliary support service such as billing, collection or recovery of cheques/accounts and remittance, evaluation of prospective customer and public relation service. 8. In the second appeal, the Adjudicating authority vide order dtd 31.12.2012, observed that the appellant provided facility for storage of goods manufactured by the principals with the help of 250 personnel posted in 14 branches all over India. They were executing the instructions of the principals. The appellant provided to the principal the report coverin....
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....d Advocate that they have rendered the services to their clients without remuneration. In any event, both sides failed to place facts of the case in roper manner for the purpose determination of the classification of the service and to extend the benefit of exemption notification. There is no clarity on the facts of the cases in the impugned orders. 10. We find that in the first appeal, the appellants requested the Adjudicating Authority to decide the second show cause notice as the period of the demand was partly covered in both the show cause notices, which was rejected by the Adjudicating Authority. We are unable to accept the findings of the Adjudicating Authority. The show cause notice dtd 1.9.2004 was issued for the period 1.7.2003....