2011 (11) TMI 229 - AT - Service Tax

Assessee acting as independent agents deemed as CIF agent invokation of period of limitation demand & penalty imposed - Held that - In the present case assessee raise his own requisition to the principal and manages the goods/premises on his own and sells the goods to the customers as if he is the owner of the goods. Terms and conditions of the agreement clearly shows that though the appellant has been termed as consignment agent by the principal the relation between them is business relation. Therefore assessee cannot be treated as C&F agent and demand imposed is set aside. Further demand for the period April 2001 to March 2002 raised by a show cause notice dated 28.2.2005 is barred by limitation. Since issue involved is of interpretation of provisions of law the appellants cannot be settled with any allegation of mala fide so as to justifiably invoke longer period or so as to impose penalty upon them. - Decided in favor of assessee.

Summary

Issues:
Demand of Service Tax and penalty imposed on the appellants for acting as C&F agent for M/s. Bajaj Auto Ltd. during a specific period.

Detailed Analysis:

1. Issue of C&F Agent Definition:
The appellants contended that they do not meet the definition of a C&F agent under Section 65(25) of the Finance Act, 1994. They argued that they are independent agents selling goods on behalf of their principal without performing all activities specified for a C&F agent. The lower authorities, however, considered them as C&F agents based on the agreement with M/s. Bajaj Auto Ltd. and the wording on their invoices. The appellants cited tribunal decisions and a Punjab and Haryana High Court judgment supporting their position.

2. Analysis of Agreement Terms:
The agreement between the appellants and M/s. Bajaj Auto Ltd. appointed the appellants as consignment agents, outlining various responsibilities such as arranging premises, placing requisitions, and adhering to sales tax regulations. However, the terms of the agreement indicated that the appellants acted independently, selling products at fixed prices and earning commissions based on sales targets. The appellants received goods from the principal and sold them to customers under their own invoices, demonstrating their independent business operation.

3. Comparison with C&F Agent Activities:
The Tribunal compared the activities of a C&F agent, as detailed in the Board's circular, with the actions of the appellants. It was noted that a C&F agent acts on behalf of the principal, managing goods under the principal's direction, whereas the appellants operated independently, raising requisitions and selling goods as their own. The invoices issued by the appellants further supported their independent business status.

4. Legal Precedents and Limitation Period:
The Tribunal referenced the decision of the Punjab and Haryana High Court, upheld by the Supreme Court, supporting the appellants' position. Additionally, the demand raised for a specific period was deemed barred by limitation as it exceeded the normal limitation period. No evidence of suppression or misstatement was found to justify invoking a longer limitation period or imposing penalties on the appellants.

5. Decision and Conclusion:
Ultimately, the Tribunal ruled in favor of the appellants, setting aside the demand for service tax and penalty both on merits and limitation grounds. The judgment highlighted the independent business nature of the appellants' operations, distinguishing them from traditional C&F agents. The dissenting opinion by the Technical Member regarding the extended period of limitation was noted but did not affect the final decision in favor of the appellants.

This detailed analysis of the judgment provides a comprehensive overview of the issues raised, arguments presented, legal interpretations applied, and the final decision reached by the Appellate Tribunal CESTAT, New Delhi.