2008 (10) TMI 42 - AT - Service Tax

Commission confirmed demand on ground that the appellants are providing the service of C/F agent - Commissioner (Appeals) relied upon the decision of the Tribunal in the case of Prabhat Zarda Factory (India) Ltd. (supra) which has already been over-ruled by the Larger Bench of the Tribunal in the case of L&T Ltd. - fit case for reconsideration by the adjudicating authority

Summary

Issues:
1. Appeal against demand of service tax on the ground of providing service as Clearing & Forwarding Agent.
2. Contention of being a Commission Agent only.
3. Reference to Tribunal decisions in Prabhat Zarda Factory and L&T Ltd.
4. Issue of time bar in the case.

Analysis:
The judgment in question involves an appeal against the demand of service tax on the basis of providing services as a Clearing & Forwarding Agent. The appellant disputed this characterization, claiming to be a Commission Agent only. The Commissioner (Appeals) had relied on the decision in the case of Prabhat Zarda Factory (India) Ltd., which the appellant argued had been overruled by a Larger Bench in the case of L&T Ltd. The appellant also raised the issue of time bar in the matter.

Upon examination, it was found that the decision in Prabhat Zarda Factory (India) Ltd. had indeed been overruled by the Larger Bench in the case of L&T Ltd. Additionally, the revenue highlighted another decision by the Larger Bench in the case of Medpro Pharma Pvt. Ltd., which stated that individuals engaged in either clearing or forwarding operations are both considered under the scope of a clearing and forwarding agent.

Considering these circumstances, the Tribunal deemed it appropriate for the matter to be reconsidered by the adjudicating authority. Consequently, the impugned order was set aside, and the case was remanded to the adjudicating authority for a fresh adjudication. The authority was instructed to take into account the relevant Tribunal decisions and provide the appellant with an opportunity to be heard. The appeal was disposed of through remand, with the order being dictated in the open court.