2007 (7) TMI 81 - AT - Service Tax

Demand(Service tax) - Department alleged that that appellant liable to pay service tax on the commission received under the category of C& F agent services - Held that appellant activity is not covered under C & F agent service and demand set aside

Summary

Issues Involved:
1. Whether the appellant provided services as a Clearing and Forwarding (C&F) agent.
2. Whether the commission received by the appellant falls under the definition of C&F agent services.
3. Whether the appellant is liable to pay service tax, penalty, and interest as per the orders of the lower authorities.

Issue-wise Detailed Analysis:

1. Whether the appellant provided services as a Clearing and Forwarding (C&F) agent:
The appellant argued that they were not providing any clearing and forwarding agent services. They claimed that the commission received was solely for procuring purchase orders for their clients. The adjudicating authority, however, did not accept this contention and confirmed the demand, imposed a penalty, and directed the recovery of interest. The Commissioner (Appeals) upheld this decision.

2. Whether the commission received by the appellant falls under the definition of C&F agent services:
The appellant highlighted that out of the 21 parties from whom they received commissions, agreements existed only with Rampur Distilleries and Holosticks India Ltd. For these two parties, the appellant claimed that the commission was for procuring orders and not for providing C&F services. The appellant referenced the Larger Bench decision in the case of Larsen & Toubro Ltd. v. CCE, Chennai, which clarified that mere procurement of orders does not fall under C&F agent services. The revenue argued that the appellant's activities, including supervising transportation and ensuring order execution, were part of C&F services.

3. Whether the appellant is liable to pay service tax, penalty, and interest as per the orders of the lower authorities:
Upon reviewing the agreements and statements, it was found that the appellant's activities included procuring orders, informing manufacturers to dispatch goods, and pursuing customers for payments. For Rampur Distilleries, additional tasks like supervising transportation and ensuring timely payments were noted. The Larger Bench decision in Larsen & Toubro Ltd. emphasized that C&F services involve activities beyond mere order procurement, such as warehousing, dispatching goods, and maintaining records. The Tribunal found that the appellant did not engage in these activities and thus did not fall under the C&F agent services definition.

Separate Judgments Delivered by the Judges:

Member (Judicial):
The Member (Judicial) concluded that the appellant's activities were limited to procuring orders and did not include C&F services. The commission received was solely for order procurement, and no contrary evidence was presented by the revenue. The impugned order was set aside, and the appeal was allowed with consequential relief.

Member (Technical):
The Member (Technical) disagreed, stating that the appellant's activities, including supervising transportation and ensuring order execution, constituted C&F services. The order was upheld, and the appeal was rejected.

Vice-President (Third Member):
The Vice-President reviewed the difference of opinion and agreed with the Member (Judicial). It was concluded that the appellant's activities did not constitute C&F services. The impugned order was set aside, and the appeal was allowed with consequential relief.

Final Decision:
In view of the majority order, the impugned order was set aside, and the appeal was allowed with consequential relief, if any.