2008 (10) TMI 23 - AT - Service Tax

Whether in determining valuation of clearing & forwarding agent service charges such as go-down rent, loading and unloading, security charges, electricity, travelling charges, internet charges etc. are excluded on the ground that they are collected as reimbursement from the service receiver - Whether the judgments relied upon by the appellant referred above lay down the correct law matter referred to larger bench

Summary

Issues:
1. Valuation of services rendered by a clearing and forwarding agent.
2. Exclusion of amounts collected as reimbursement of various expenses in the valuation.
3. Interpretation of precedent decisions by the Tribunal.
4. Granting waiver of pre-deposit based on reliance on precedent decisions.
5. Referral of questions of law to a Larger Bench.

Detailed Analysis:
1. The primary issue in this case revolves around the valuation of services provided by the appellant as a clearing and forwarding agent. The appellant collects service charges under two heads - Commission and reimbursement of expenses. The dispute lies in the valuation of these services, particularly the expenses claimed for go-down rent, loading and unloading charges, cartage, stationery, printing, telephone, and electricity. The Tribunal observed that the breakdown provided by the appellant seemed artificial, and it was unclear what activities fell under the service of clearing and forwarding agent and the exact nature of the Commission amount.

2. The Tribunal examined various decisions cited by the appellant to support their case, including the case of Sri Sastha Agencies Pvt. Ltd. and subsequent decisions like U.M. Thariath & Company, Sangamitra Services Agency, Jaylaxmi Enterprises, Keralam Enterprises, APCO Agencies, and S & K Enterprises. However, the Tribunal found that these decisions did not provide a clear rationale for excluding amounts collected as reimbursement of expenses. The Tribunal noted that the list of excluded categories expanded in later decisions, allowing exclusion not only under specific heads but also under residual categories, which necessitated a re-evaluation of the previous decisions.

3. Considering the reliance on precedent decisions by the appellant and the need for a re-examination of the legal principles involved, the Tribunal decided to refer the matter to a Larger Bench for further clarification. The Tribunal granted a waiver of pre-deposit of dues based on the appellant's reliance on previous Tribunal decisions and the proposal to refer the matter to a Larger Bench for reconsideration.

4. The Tribunal formulated two questions of law to be referred to the Larger Bench for clarification. The first question pertained to the exclusion of various charges collected as reimbursement from the service receiver in determining the valuation of clearing and forwarding agent services. The second question sought to ascertain whether the judgments cited by the appellant accurately reflected the legal position, indicating the need for a comprehensive review of the existing legal framework governing the valuation of such services.

5. In conclusion, the Tribunal directed the registry to present the case before the Hon'ble President for the constitution of a Larger Bench to address the questions of law raised in the appeal and provide clarity on the valuation of services rendered by clearing and forwarding agents. The decision highlighted the importance of re-evaluating previous decisions in light of evolving legal interpretations and precedents in the field of taxation and service valuation.