Page 125 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] ASHANI CORPORATION v. COMMISSIONER OF SERVICE TAX, AHMEDABAD 43
has retained that portion and not sent the same in foreign exchange to the Parent
Company at Singapore along with other said proceeds. Outflow of foreign ex-
change has been reduced to the extent of commission/service charge retained by
the appellant within India. Such retention has to be necessarily treated as saving
of foreign exchange. Therefore the appellant is entitled for refund and as a result,
the appeal filed by the appellant is allowed.
(Pronounced in Court on 10-10-2018)

_______

2020 (38) G.S.T.L. 43 (Tri. - Ahmd.)

IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[COURT NO. III]
S/Shri Ramesh Nair, Member (J) and Raju, Member (T)
ASHANI CORPORATION
Versus
COMMISSIONER OF SERVICE TAX, AHMEDABAD

Final Order No. A/11903/2019-WZB/AHD, dated 30-9-2019 in Appeal
No. ST/728/2011
Air Travel Agent’s service - Commission Agent - Overriding commis-
sion received from Airlines in respect of Air Travel Agent’s service during pe-
riod 2004-2005 not taxable - Sections 65(4) and 65(105)(l) of Finance Act, 1994.
[paras 5, 6]
Appeal allowed
REPRESENTED BY : Shri Bishan R. Shah, CA, for the Appellant.
Shri S.K. Shukla, Superintendent (AR), for the
Respondent.
[Order per : Ramesh Nair, Member (J)]. - The brief fact of the case is that
the appellant are General Sales Agent of KLM Royal Dutch Airline. They are re-
ceiving the overriding commission from their principal i.e. Airline during the
period 2004-05. Department has raised the demand considering the same as
overriding commission under the head of “Business Auxiliary Service”.
2. Sh. Bishan R. Shah, Ld. Chartered Accountant appearing on behalf of
the appellant submits that during the relevant period i.e. 2004-05 the commission
in respect of Service was not taxable. He referred to the definition existing as per
Notification No. 13/2003-S.T., dated 20-6-2003 effective from 1-7-2003. He also
referred to amended definition of commission which is effective from 16-5-2005.
Accordingly the commission related to service was not taxable, therefore, it is his
submission that during the relevant time commission received by them in con-
text to service of Air Travel Agent is not taxable.
3. Sh. S.K. Shukla, Ld. Counsel Superintendant (AR) appearing for the
Revenue reiterates the finding of the impugned order.

GST LAW TIMES  2nd July 2020  125