2008 (11) TMI 171 - AT - Service Tax

Clearing and Forwarding Agent Services being provided on principal to principal basis not on principal agent basis - That the appellants are paying Service Tax under the category of Transport of goods through pipeline which is a fact not disputed by the department Held that the services rendered by the appellants do not fall under C & F Agents services - we are bound to follow the ratio of our own decision in the said final order. It was pointed out that the department has gone in appeal against the said final order to the Hon ble High Court of Andhra Pradesh. However there is no stay of operation of the Tribunal s order. In these circumstances respectfully following the ratio of the earlier order we allow the appeal and set aside the impugned order with consequential relief.

Summary

Issues:
Service Tax demand, interest under section 75, penalties imposed, interpretation of Production Sharing Contract, Joint Venture agreement, Oil Transfer Services contract, classification of services under 'Clearing and Forwarding Agent' services, applicability of Service Tax, principal to principal relationship, Bill of Lading issuance, limitation period for invoking extended period, reimbursable expenses not subject to Service Tax.

Analysis:

1. Service Tax Demand, Interest, and Penalties:
The appeal was filed against Order-in-Original No. 23/2008, which demanded Service Tax of Rs. 53,15,825 for the period of 1-2-2004 to 31-3-2004. Along with the Service Tax demand, interest under section 75 and penalties were also imposed. The issue revolved around the classification of services provided by the appellant under the category of 'Clearing and Forwarding Agent' services for which the Service Tax was demanded.

2. Interpretation of Contracts:
The appellant, engaged in exploration of oil resources, entered into various agreements like the Production Sharing Contract, Joint Venture agreement, and Oil Transfer Services contract with ONGC. The Production Sharing Contract allowed the facilities constructed to be made available to participants or their party. The Oil Transfer Services contract recognized the transaction between the appellant and ONGC on a principal to principal basis. The process involved the receipt of crude, transfer through pipelines, and issuance of Bill of Lading by ONGC.

3. Classification of Services:
The main contention was whether the services rendered by the appellant fell under the category of 'Clearing and Forwarding Agent' services for the purpose of levying Service Tax. The appellant argued that the relationship with ONGC was on a principal to principal basis, and they did not perform the functions of clearing or forwarding. The services provided by the appellant were primarily storing crude and transferring it through pipelines, not falling under the C & F Agent services.

4. Limitation Period and Reimbursable Expenses:
The appellant contended that they were under the bona fide impression that they did not fall under the category of C & F services. It was argued that the extended period cannot be invoked as the department was aware of the situation. Additionally, the port fee, considered as reimbursable expenses, was argued not to be subject to Service Tax as it was not a receipt related to any taxable service provided by the appellant.

5. Judgment and Conclusion:
The Tribunal referred to a previous Final Order where similar issues were decided in favor of the appellant. It was noted that the relationship between the appellant and ONGC was on a principal to principal basis, and the services provided did not align with C & F Agent services. Following the ratio of the earlier order, the Tribunal allowed the appeal, setting aside the impugned order with consequential relief, as there was no stay of operation of the Tribunal's previous order despite the department appealing to the High Court.