2010 (5) TMI 756 - HC - VAT and Sales Tax

Whether the CESTAT is legal and correct in setting aside the impugned O.I.O. No. 18 of 2006 dated February 28, 2006 on the ground that the activities of the respondent did not fall under the taxable category of clearing and forwarding agent services? Whether the activities undertaken by the respondent would fall within the ambit of C and F agent services, within the definition of section 65(25) of the Finance Act, 1994? Held that - If the main activity of the assessee is in the nature of C and F agent and procuring orders would have been bought into the said definition. On the other hand, we find that the main activity of the respondent-assessee is not that of a C and F agent . Therefore, the contention of the counsel for the appellant cannot be accepted. Hence, the substantial questions raised in this appeal have to be answered against the appellant-Revenue and consequently, the appeal is dismissed as being devoid of merit.

Summary

Issues:
1. Whether the CESTAT was correct in setting aside the order regarding the taxable category of clearing and forwarding agent services?
2. Whether the activities of the respondent fall within the definition of C and F agent services under section 65(25) of the Finance Act, 1994?

Analysis:
1. The case involved an appeal by the Revenue challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the liability of the respondent for service tax as a clearing and forwarding agent. The respondent contended that it was not providing C and F agent services and thus not liable for service tax. The CESTAT set aside the order, stating that the respondent did not fall under the taxable category of C and F agent services. The appellant argued that the respondent should be considered within the scope of the definition in section 65(25) of the Act. The respondent, on the other hand, argued that its activities did not align with the definition of a C and F agent and should be categorized as "business auxiliary service" instead.

2. Section 65(25) of the Finance Act, 1994 defines "clearing and forwarding" as any person engaged in providing services connected with such operations. The Trade Notice provided further details on the role of clearing and forwarding agents, including receiving goods, warehousing, dispatch orders, arranging transport, record-keeping, and preparing invoices. The Commission agreement in question outlined services related to operating activities, marketing, promotional activities, and warranty costs. The court found that the respondent's activities did not involve collecting and receiving goods but focused on procuring customers and fulfilling obligations for the foreign principal. Therefore, the nature of the respondent's activities did not fit within the definition of a C and F agent under section 65(25) of the Act.

3. The court rejected the appellant's argument that any indirect activity resembling a C and F agent should fall under the definition. Referring to previous judgments, the court emphasized that mere procuring of orders for a principal on a commission basis did not amount to providing services as a C and F agent. The main activity of the respondent was not that of a C and F agent, as clarified by the terms of the Commission agreement. Therefore, the court concluded that the substantial questions raised in the appeal should be answered against the Revenue, and the appeal was dismissed for lacking merit.