2011 (5) TMI 801 - AT - Service Tax

Clearing & Forwarding Agent - waiver of pre-deposit - Applicant had already deposited an amount of Rs. 6,31,380 - Applicant submitted that the warehousing activity is not undertaken by the applicants nor applicants are issuing any invoice on behalf of the principal. The applicants are merely a transporter incidentally handling the goods Held that - applicants are not warehousing the goods nor receiving dispatch order from the principal nor preparing any invoice on behalf of the principal, deposit of Rs. 6,31,380 is sufficient for hearing of the appeal, pre-deposit of remaining amount of Service Tax, interest and penalty is waived and recovery of the same is stayed during pendency of the appeal

Summary

Issues:
1. Waiver of pre-deposit of Service Tax and penalties.
2. Classification of services provided by the applicant as Clearing & Forwarding Agent service.
3. Interpretation of the activities undertaken by the applicant in relation to the definition of Clearing & Forwarding Agent service.

Analysis:
The judgment revolves around the application for the waiver of pre-deposit of Service Tax and penalties by the applicant, who had already deposited a partial amount. The demand was confirmed on the basis that the applicant was providing Clearing & Forwarding Agent Service. The applicant contended that the contracts were for transportation, loading, unloading, and supervision of low ash of hard coal, not falling under the purview of Clearing & Forwarding Agent service. The applicant relied on a Board's Circular to support their argument, highlighting that they were not undertaking warehousing activities or issuing invoices on behalf of the principal, but were merely acting as transporters.

The Revenue, however, argued that the activities conducted by the applicant indeed fell under the definition of Clearing & Forwarding Agent service, justifying the demand made. The Tribunal delved into the provisions of the Finance Act, defining Clearing & Forwarding Agent as a person engaged in providing services connected to clearing and forwarding operations. The Board's clarification on the normal activities of Clearing & Forwarding Agents was also considered. In the present case, since the applicants were not involved in warehousing, receiving dispatch orders, or preparing invoices on behalf of the principal, the Tribunal found that the pre-deposit made by the applicant was sufficient for the appeal hearing. Consequently, the Tribunal waived the pre-deposit of the remaining amount of Service Tax, interest, and penalty, and stayed the recovery during the appeal's pendency.

The judgment, pronounced and dictated in open court, provides a clear interpretation of the activities undertaken by the applicant in relation to the definition of Clearing & Forwarding Agent service, ultimately leading to the decision to waive the pre-deposit of the remaining amount and stay the recovery during the appeal process.