2013 (8) TMI 296 - HC - Service Tax

Forwarding Agents u/s 65(a) - Clearing and Forwarding Services u/s 65(a) - Duty Demand Whether the Tribunal was correct in law in holding that the activities of the assesse would not come within the purview of clearing the forwarding agents and service provided as clearing and forwarding service and the levy and demand of service tax was unsustainable - Held that - The assessee s business was never that of a clearing and forwarding agency - relying upon MAHAVIR GENERIC V CCE 2004 (4) TMI 2 - CESTAT, NEW DELHI - assessee was, in no way, connected with clearing and forwarding of the goods, remains undisturbed - the assessee had not claimed that it has no role on dispatch of goods to the purchaser - there was no evidence to show that the assessee had the responsibility of arranging the despatching of goods purchased by the buyer in the auction nor had responsibility undertaken to collect the goods from the Principal s premises to hold that the assessee was a clearing and forwarding agency Department itself was not certain about the head under which the transaction character would fall, the criteria which was of great significance in the matter of taxation - The attempt of the Revenue appears to be to hit at some clause to bring the assesse somehow with the net of taxation Decided against revenue.

Summary

Issues Involved:
1. Whether the activities of the respondent fall within the purview of clearing and forwarding agents as per Section 65(a) of the Finance Act, 1994.
2. Whether the respondent is liable for service tax under the category of clearing and forwarding services as per Section 65(a) of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Activities of the Respondent under Section 65(a) of the Finance Act, 1994:
The Tribunal held that the respondent's activities did not constitute clearing and forwarding services. The consignments were brought to the respondent's premises by the Principal for auction, and the goods were delivered to the buyer at the sales premises by the owner/Principal. There was no forwarding involved. The Tribunal referenced the decision in 2004 (170) ELT 78 MAHAVIR GENERIC v. CCE, concluding that the respondent was not performing forwarding services and thus not liable for service tax.

2. Liability for Service Tax:
The respondent, a registered Co-operative Society, was involved in activities such as advancing loans on the pledge of sago and starch, undertaking sales on an agency basis, purchasing materials, quality grading, and warehousing. The Preventive Group's investigation suggested these activities fell under 'clearing and forwarding agents' rather than 'storage and warehousing'. The Assessing Officer, after detailed scrutiny, concluded that the respondent's activities matched those of clearing and forwarding agents, as they maintained records, prepared invoices, and arranged dispatch of goods. Consequently, the Assessing Officer confirmed the service tax liability and imposed penalties.

Appeal and Tribunal's Decision:
The Commissioner of Central Excise (Appeals) partly allowed the respondent's appeal, acknowledging the welfare role of the Co-operative Society and setting aside the penalty. However, the Commissioner upheld the service tax demand, adjusting the amount already paid under storage and warehousing.

The Customs, Excise and Service Tax Appellate Tribunal, upon appeal, ruled in favor of the respondent, stating that the respondent was not engaged in clearing and forwarding services. The Revenue's appeal to the High Court contested this decision, arguing that the respondent's activities fit the description of clearing and forwarding agents as per the Ministry of Finance's circular dated 11th July 1997.

High Court's Analysis:
The High Court agreed with the Tribunal's findings, noting that the respondent's activities did not involve receiving goods from the Principal's premises or arranging dispatch. The respondent merely provided a platform for auction and storage facilities, without engaging in typical clearing and forwarding activities. The High Court emphasized that the burden of proof lay with the Revenue to demonstrate that the respondent's activities fell within the clearing and forwarding category, which they failed to do.

The High Court also considered Section 65A(2) of the Finance Act, which mandates classifying services based on their essential character. The respondent's predominant activities were facilitating sales and providing storage, not clearing and forwarding. The High Court found no substantial question of law arising from the Revenue's appeal and dismissed it.

Conclusion:
The High Court dismissed the Revenue's appeal, confirming that the respondent's activities did not constitute clearing and forwarding services under Section 65(a) of the Finance Act, 1994, and thus were not liable for service tax under that category. The judgment emphasized the importance of accurately classifying services based on their essential characteristics and the burden of proof on the Revenue to substantiate their claims.