2014 (9) TMI 875 - AT - Service Tax

Clearing and forwarding agent service - Activity to receive the products manufactured/purchased or otherwise acquired by the Cipal at their premises and to store and dispatch the same in such lots and in such manner and to such parties as may be directed by Cipla from time to time - Held that - From the terms and conditions specified in agreement entered into by the appellant with Cipla Ltd, the activities of the appellant start from receiving the goods supplied by Cipla, warehousing the same and dispatching as per the instructions given by Cipla. The appellant does not undertake any clearing functions from the premises of Cipla. Thus the activity of the appellant is a forwarding activity. In the Kulcip Medicines case 2009 (2) TMI 89 - PUNJAB AND HARYANA HIGH COURT , the Hon ble High Court of Punjab & Haryana held that to come under the category of Clearing and Forwarding Agent both the functions, namely, clearing and forwarding should be undertaken and the word and has been used in a conjunctive sense. The Hon ble High Court also took notice of the Larger Bench decision in the case of Medpro Pharma and overruled the said decision. The SLP filed by the Revenue against the said decision was dismissed by the Hon ble Apex Court after hearing the Petitioner. In these circumstances, the decision of the Hon ble P&H High Court in Kulcip Medicines case prevails and have to be followed by all other subordinate authorities - Decided in favour of assessee.

Summary

Issues:
- Determination of liability to pay Service Tax on services rendered by the appellant as a carrying and forwarding agent.
- Interpretation of the term "clearing and forwarding agent" under the Finance Act, 1994.
- Application of legal precedents regarding the classification of services provided by the appellant.

Analysis:
1. Liability to pay Service Tax:
The appellant, appointed by M/s. Cipla Ltd. as their carrying and forwarding agent, was subject to a demand for Service Tax by the department. The appellant argued that they were not liable to pay Service Tax as they were not performing the functions of a "clearing and forwarding agent" but rather acting as a forwarding agent on a principal-to-principal basis. The appellant highlighted various services they provided, emphasizing that they did not undertake any clearance functions, thus challenging the liability for Service Tax.

2. Interpretation of "Clearing and Forwarding Agent":
The appellant relied on legal interpretations, including a circular by the C.B.E. & C. and a judgment by the Hon'ble Punjab & Haryana High Court, to support their claim. They argued that unless both clearing and forwarding functions were undertaken by the service provider, the activity could not be classified under "clearing and forwarding agent" services for Service Tax purposes. The appellant contended that their activities aligned more with those of a forwarding agent, as they did not engage in clearance activities.

3. Application of Legal Precedents:
The Additional Commissioner for the Revenue referenced a circular by the C.B.E. & C. and legal decisions, including a ruling by the Larger Bench of the Tribunal and a judgment by the Hon'ble High Court of Karnataka. The Revenue argued that the appellant's activities fell under the category of Clearing & Forwarding Agency service based on the agreement terms and the services provided. However, the Tribunal analyzed the agreement and legal precedents, particularly the Kulcip Medicines case, emphasizing that both clearing and forwarding functions must be undertaken to classify as a "clearing and forwarding agent." The Tribunal distinguished the Mahaveer Generics case cited by the Revenue, stating it did not apply to the present circumstances.

4. Final Decision:
After considering the arguments and legal positions presented by both parties, the Tribunal ruled in favor of the appellant. The Tribunal concluded that the appellant's activities aligned more with forwarding services, as they did not engage in clearing functions. Citing the legal precedent set by the Hon'ble Punjab & Haryana High Court in the Kulcip Medicines case, the Tribunal held that the appellant was not liable to pay Service Tax as a clearing and forwarding agent. The appeal was allowed based on the legal and factual analysis provided during the proceedings.