The Krushak Seva Sahayya Samiti Trust vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.ST/319/10

(Arising out of Order-in-Appeal No.AGS(45)/129/2010 dated 18/03/2010 passed by Commissioner of Central Excise & Customs (Appeals),Aurangabad)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

The Krushak Seva Sahayya Samiti Trust Appellant Vs. Commissioner of Central Excise, Respondent Aurangabad

Appearance:

Shri.S.B.Awate, Consultant for appellant Shri.R.K.Das, Dy. Comm. (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 09/07/2015 Date of Decision : 09/07/2015

ORDER NO

Per: M.V. Ravindran

1. This appeal is directed Order-in-Appeal No.AGS(45)/ 129/2010 dated 18/03/2010 passed by Commissioner of Central Excise & Customs (Appeals),Aurangabad.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding the discharge of service tax liability during the period 2005-06 to 2006-07 on an amount received as commission from M/s.Dr.B.B.Tanpure SSK Ltd.

4. Revenue is of the view that the amount received by the appellant has been recorded as an income under the category of commission; hence, service tax liability arises under the Business Auxiliary Service. The lower authorities have rejected the contention raised by the appellant that no service tax liability arises on this amount on the ground that once the appellants received commission, they are liable to discharge the service tax liability. We find that the issue is no more res integra inasmuch as the Tribunal in identical set of facts in the case of Dnyaneshwar Trust Vs. CCE, Mumbai  2013 (31) STR 328 (Tri-Mumbai) held as under:

The appellant has filed this application for waiver of pre-deposit of duty of Rs. 1,43,60,622/-, interest and penalties. The demand is confirmed on the ground that the appellant provided Business Auxiliary Service and received some amount from the sugar manufacturers on which appropriate service tax has not been paid. The contention is that the appellant is undertaking the activity of harvesting and transportation of sugarcane from the farmers fields to the sugar factory and to coordinating such activities the appellants are paying service tax in respect of harvesting and transportation of sugarcane. The appellant is receiving certain amounts for rendering the above service, which was shown in the Books of Accounts as commission. The contention in the impugned order, (para 6.3) is that the appellant has acted as commission agent and the commission agent is also covered under the scope of Business Auxiliary Service. The appellant claims the benefit of Notification No. 13/2003-S.T., dated 20-6-2003, which provides exemption in respect of Business Auxiliary Service provided by commission agent in respect of agricultural products from service tax. The contention is that the appellant is dealing with sugarcane which is an agricultural product hence, the appellant is entitled for the benefit of Notification. Hence, the demand is not sustainable.

5. We find that in the case in hand there is no dispute that the appellant is transporting sugarcane from the farmers fields to the sugar factory and the ratio of the Tribunal decision in the case of Dnyaneshwar Trust (supra) will directly apply. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any.

(Pronounced in Court)

(Raju) Member (Technical) (M.V. Ravindran) Member (Judicial)

pj

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