TaxTMI 
TaxTMI 
2026 (6) TMI 1151
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....s confirmed. 2.1 Aggrieved from the said order, the appellants are before us. 3. The ld. Counsel for the appellants, submits that the similar issue came up before this Tribunal in the case of Smt.Gopa Sarkar Vs. Commissioner of Central Excise & Service Tax, Siliguri vide Final Order No.76586/2024 dated 31.07.2024, wherein this Tribunal remanded the matter back to the adjudicating authority for re-consideration. Therefore, she prays that the present matters be remanded back to the adjudicating authority. 4. On the other hand, the ld. A.R. for the Revenue, relies on the decision of this Tribunal in the case of Harvinder Kaur Malhotra Vs. Commissioner of CGST & Central Excise, Jodhpur reported in 2025 (4) TMI 1395-CESTAT, New Delhi, wherein it has been held that the appellants are liable to pay service tax. He, therefore, prays that the matters be decided on merit itself. 5. Heard both the parties and considered the submissions. 6. We find that while passing the order by this Tribunal in the case of Harvinder Kaur Malhotra (supra), this Tribunal has not considered the decision of this Tribunal in the case of Smt. Gopa Sarkar (supra) along with MT. Paramjit Kaur & Others....
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....n demanded on the gross amount of commission received by each of the Distributors (assessees) of Amway during the period of dispute, as intentioned in the Chart in para 2 above. The The department's contention is that these commission received by the assessees from Anway are in respect of the Business Auxiliary Service provided by them to Amway. On the other hand, the contention of the assessces is that their activity is not covered by the definition of Business Auxiliary Service as given under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994. 11. In terms of Section 65(105) (/b), the service provided to a client by Commercial concern in relation to the Business Auxiliary Service is taxable. The term "Business Auxiliary Service" is defined under Section 65(19) of the Finance Act, 1994 as under:- Section 65(19): "Dusiness auxiliary service" means any service in relation to Promotion or marketing or sale of goods produced or provided by or belonging to the client, or (ii) Promotion or marketing of service provided by the client; or [Explanation For the removal of doubts, it is hereby declared that for the purposes of this sub-claus....
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.... is chargeable on the profit earned by the distributors from sale of the goods in retail which had been purchased by them from Amway and on the commission caned by them every month on purchase of certain quantum of goods from Amway. 13. However, activity of a Distributor of identifying other persons, who can be roped in for sale of the Amway products/marketing of the Amway products and who on being sponsored by that Distributor are appointed by Amway as second level of distributors is, our the activity of marketing or sale of the goods belonging to Amway and the commission received by the Distributor from Amway, which is linked to the performance of his sales group (group of the second level of distributors appointed on best sponsored by the Distributor) would have to be treated as considerations Tor Business Auxiliary Service of sales promotion provided to Amway. Therefore, service tax would be chargeable on the commission received by a Distributor from Amway on the products purchased by his sales group. However, in the impugned orders service tax has been demanded on the gross amount of commission and no distinction has been made between the commission earned by a Distri....
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....promoted the sale/marketing of branded products. This ples of the Department is not correct, as in these cases the distributors are engaged in promoting sales/marketing of the products of any Amway and they are not marketing or promoting any taxable service which is branded and the brand name belongs to another person. Marketing or sale promotion of branded products by a person/ commission agent does not by him amount to providing branded service by him and hence, marketing or sales promotion of a branded product does not come under the exclusion category mentioned in the proviso to Notification No.6/05-ST. In this group of cases, the -ST eligibility of the Distributors (assessecy for the exemption notification no.6/2005-ST has not been examined and for this purpose also, these matters have to be remanded to the Original Adjudicating Authority. 16. Another plea raised in these appeals is regarding limitation. It is of the contention of the assesse that there was absolutely no suppression or mis-statement of facts or deliberate contravention of the provisions of the Finance Act, 1994 or of the Rules made thereunder with intent to evade payment of service tax. The Department....