2013 (8) TMI 291 - AT - Service Tax

Clearing and forwarding (C&F) services - appellant provided services in relation to clearing and forwarding and payments received as contract receipt - Held that - The activity of the appellant is only of forwarding and not clearing and forwarding as decided in CCE, Panchkula vs. Kulcip Medicines (P) Ltd ( 2009 (2) TMI 89 - Punjab and Haryana High Court) - the only activity done by him is (a) providing labour for unloading of the goods at the rail heads, loading into the trucks for transport from rail-head to godown and unloading and stacking of the cement at the godown (b) arranging the dispatch of the goods as per the instructions and maintaining record of receipt and dispatch - the order is not sustainable - the appeal is allowed.

Summary

Issues:
Interpretation of C&F agent's service for service tax liability.

Analysis:
The case involved a dispute regarding the service tax liability of an appellant who provided services to a client, M/s Binani Cement Ltd., under the head "contract receipt." The appellant claimed they were only providing labor services for unloading, loading, stacking, and dispatching goods as per the client's instructions. The tax department argued that these services constituted C&F agent's service, subject to service tax. A show cause notice was issued for recovery of service tax, interest, and penalties. The Joint Commissioner upheld the tax demand, considering the appellant's activity as C&F agent's service. On appeal, the Commissioner (Appeals) affirmed the decision, citing a Tribunal judgment that service tax applied even if a person provided either clearing, forwarding, or both services.

During the hearing, the appellant contended that their activities were solely forwarding, not clearing and forwarding, as they were not involved in clearing operations. They referenced a High Court judgment that interpreted the relevant sections of the Finance Act to require engagement in both clearing and forwarding activities for service tax liability. The appellant argued that the Tribunal's earlier ruling was incorrect in light of this High Court decision. The department defended the Commissioner (Appeals) decision.

Upon review, the judges noted that the appellant's activities were limited to labor services and arranging dispatch, while the actual clearing and forwarding were done by M/s Binani Cement Ltd. The judges referenced the High Court judgment, which clarified that for service tax liability under the relevant sections of the Finance Act, engagement in both clearing and forwarding activities was necessary. They also mentioned that the High Court decision had been upheld by the Apex Court. Consequently, the judges found the appellant's activities did not fall under the taxable C&F agent's service category. Therefore, they set aside the impugned order, allowing the appeal in favor of the appellant.

This judgment highlights the importance of correctly interpreting the scope of services for service tax liability, particularly in cases involving activities like clearing and forwarding. It also underscores the significance of higher court decisions in guiding the interpretation and application of tax laws.