TaxTMI 
TaxTMI 
2016 (3) TMI 1050
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and for consultancy to effectively promote the sale of IMFL/Beer belonging to BDA Ltd. On examination and outcome of an inquiry conducted by the Officers of Preventive Section, Mumbai I Commissionerate, it was noticed that appellant had received an income as commission on which service tax liability arises under the category of Business Auxiliary Service as per the Section 65(105)(zzb) of the Finance Act, 1994. Show-cause notice was issued for the demand of service tax liability, interest thereof and for imposition of penalties. The show-cause notice was resisted on merits as well as on limitation. The adjudicating authority after following due process of law confirmed the demands raised, appropriated the amount paid by the appellant during the pendency of the proceedings and also imposed penalties under Section 76, 77 and 78 of the Finance Act, 1994. 3. Learned Counsel appearing on behalf of the appellant would take us through various clauses of Manufacturing Agreement entered by them during the period in question. He would draw our attention to the specific clauses and submit that the appellant had in fact, did not promote any goods produced or provided or belonging to the cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....chase of the goods on behalf of another person, but in the case in hand the entire marketing set up is being done by the appellant herein. He would submit that the decision of the Tribunal in the case of Aditya Birla Nuvo Ltd. v. CCE Vadodara - 2011 (22) STR 41 (Tri. Ahmd.) will be applicable in its full force. He would also submit that the judgement of the Tribunal in the case of CCE, Raipur v. Raj Wines - 2012 (28) STR 46 (Tri. Del) may also be considered. 5. We have considered the submissions made at length by both sides and perused the records. 6. The short issue involved in this appeal is whether the services rendered by the appellant to BDA Ltd., during the period July, 2003 to 08.07.2004 were eligible for exemption from Service Tax in terms of Notification No.13/2003-ST dated 20.06.2003. The said Notification exempts from payment of Service Tax the "Business auxiliary services" provided by a "commission agent". The expression "commission agent" has been defined in an Explanation under the said Notification to mean "a person who causes sale or purchase of goods on behalf of another person for a consideration which is based on the quantum of such sale or purchase. 6.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent but does not include any information technology service and any activity that amounts to "manufacture" within the meaning of clause (f) of section 2 of the Central Excise Act, 1944 (1 of 1944) 6.2 It is clear from the above extracted definition that business auxiliary services include, in addition to services in relation to sale of goods, several other services too such as those in relation to promotion or marketing of goods belonging to the clients, services for procurement of goods or service for the client or any customer care service provided on behalf of the client or production of goods on behalf of the client or provision of service on behalf of the client or any incidental or auxiliary service such as billing, issue or collection or recovery or cheques, payments, maintenance of accounts and remittance, including inventory management, evaluation or development of prospective customer or vendor, pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tity of liquor sold through them. 6.6 The Ld. Representative for the revenue also cited a Tribunal decision in the case of Aditya Birla (supra) wherein the benefit of the same exemption was denied and the decision of the Bangalore Bench of the CESTAT in the case of Premier Enterprise cited supra was distinguished. We do not find this decision to be of any relevance to the present case as this decision was rendered in the context of some peculiar facts prevailing in that case viz that the consideration received by the assesse therein was not really linked to the quantum of sales effected as is the requirement of the Notification, but was really a trading margin being retained by the said assessee by claiming it as a commission. The Tribunal, in Paras 15 to 17 of the said order, took note of this peculiar feature of the arrangement of the assessee in that case and the manufacturer whose goods were being sold. The earnings of the appellant therein varied from 5% to 94% of the sale price which itself indicated that the assessee was not really working on commission basis, which is usually a fixed rate but was earning a trading margin and claiming the same to be a commission. Further,....