2024 (8) TMI 322

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....of Central Excise (Appeals-II), Kolkata, wherein the Ld. Commissioner (Appeals) has upheld the demands of duty, interest and penalties confirmed in the Order-in-Original dated 26.07.2013. The appellant has also filed an application to bring additional documents on record. 2. The facts of the case are that the appellant had entered into an agreement dated 19.08.2006 with M/s. Indian Oil Corporation Limited (hereinafter referred to as 'IOCL') for operation of the Company Owned Company Operated outlet. The Department considered the services rendered by the appellant as promotion, marketing or selling of the products of the company. Accordingly, the service charges received by the appellant towards rendering of the said services were conside....

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....mes within the ambit of BAS. It is also submitted that from the Operational point of view, Ownership and Operational Management, Planning and Control, etc., are in the hands of IOCL; that the he appellant has no Control on Operation as well as Marketing, Advertisement, Quality Control, Decision Making and Other Management Activities; the appellant is a Caretaker of Property and Regular Outlet Activities. It is contended by the appellant that the presumption of the Department that the appellant had promoted the sales or marketing the goods manufactured by IOCL is absolutely wrong. Accordingly, they prayed for setting aside the demands confirmed in the impugned order and for allowing their appeal. 3.1. In their additional grounds, the appe....

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....es etc. in IOCL Outlet properly (point No 18); f) The Contractor will sell the Oil & Lubricants of IOCL at its fixed Rates (point No 09); g) The Contractor will assist the Management of IOCL in its periodical checking and regular monitoring activities (point No 35); h) The Contractor will keep the sales records as prescribed format of IOCL (point No.32); i) The Contractor will update & renew all Licences & Permissions in the name of IOCL time to time (point No 36). 6.1. From the Terms and Conditions of the Agreement reproduced above, we observe that the appellant has been appointed by IOCL for the purpose of operation of the Company Owned Company Operated outlet. From the Clauses of agreement, it is ap....

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....ehalf of the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue 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 commissions agent, [ but does not include any activity to manufacture of excisable goods;]" 6.3. We observe the activities undertaken by the appellant would not fall under any of the clauses mentioned above. None of the Clauses of the Agreement talk about promoting the sales or mark....