2008 (2) TMI 178 - AT - Service Tax

No evidence to say that the appellant carried out clearing and forwarding activities on behalf of the Principal - held that mere procuring or booking orders for the Principal by an agent on a payment of commission basis would not amount to providing services as clearing and forwarding agent within the meaning of definition of that expression under Section 65(25)

Summary

Issues:
1. Whether the appellants can be considered as C & F Agents for the purpose of service tax.
2. Whether the appellants are eligible for a refund of service tax paid.
3. Interpretation of agreements and roles defined therein.

Analysis:

Issue 1 - C & F Agent Classification:
The appellants, registered as C & F Agents, paid service tax from September 1999 to June 2004. They claimed a refund after learning about a CESTAT decision stating consignment agents cannot be charged service tax as C & F Agents. The Commissioner (Appeals) rejected the refund claim, deeming the appellants liable for service tax as C & F Agents. The appellants argued they were selling agents, not C & F Agents, based on agreements defining their role. They emphasized independence in handling goods and issuing invoices, distinguishing themselves from typical C & F Agents. The Tribunal noted the appellants' role as selling agents under consignment agreements, concluding they did not perform C & F activities for the principal. This distinction led to allowing the appeal and granting consequential relief.

Issue 2 - Refund Eligibility:
The appellants sought a refund of service tax paid, contending they were not C & F Agents but independent selling agents. They referenced agreements, commission-based earnings, and lack of control by the principal over goods to support their claim. The Tribunal analyzed the agreements and activities of the appellants, finding no evidence of C & F services provided. Consequently, the Tribunal allowed the appeal, acknowledging the appellants' eligibility for a refund based on their role as selling agents rather than C & F Agents.

Issue 3 - Interpretation of Agreements:
The Tribunal scrutinized the consignment agreements to determine the nature of the appellants' role. The agreements appointed the appellants as selling agents for specific products, outlining commission-based arrangements. By comparing the activities enumerated for C & F Agents in legal precedents, the Tribunal established that the appellants did not engage in typical C & F activities. The Tribunal relied on the interpretations of relevant legal decisions to conclude that the appellants' role aligned more with selling agents than C & F Agents, justifying the refund claim and relief granted.

In conclusion, the Tribunal's detailed analysis of the appellants' agreements, activities, and legal precedents led to the decision to allow the appeal, recognizing the appellants as selling agents rather than C & F Agents and consequently granting them relief in the form of a refund of service tax paid.