2008 (10) TMI 205 - AT - Service Tax

Clearing and forwarding service - The contention is that the manufacturer of country liquor products fixed the price of liquor at which the applicant receives the products and thereafter the applicant is responsible to fix the price to meet out the depot expenses his profits, therefore, there is no service of clearing and forwarding agent s service. The contract is for sale and purchase of the goods held that that it is not a fit case for total waiver of service tax. The applicants also pleaded that if the demand is confirmed the benefit of cum-duty is also entitled for the expenses which are reimbursed by the manufacturer. Keeping in view the facts and circumstances of the case, the applicants are directed to deposit Rs. 20 lakhs in addition to the amount already deposited stay granted partly.

Issues:
Waiver of pre-deposit of service tax amounting to Rs. 98,66,270 based on the nature of services provided by the applicant - whether the applicant qualifies as a clearing and forwarding agent or not.

Analysis:

Issue 1: Nature of Services Provided
The applicant contended that they are not providing clearing and forwarding agent's service but are operating a depot for marketing country liquor products. The main demand arose from an agreement with M/s. Kesar Enterprises Ltd. According to the agreement, the applicant is responsible for transportation of liquor products, maintaining the depot, fixing prices, and recovering expenses and profits. The applicant argued that they operate on a principal-to-principal basis and are not engaged in traditional clearing and forwarding activities.

Issue 2: Interpretation of Legal Provisions
The revenue, however, argued that the terms of the agreement establish the applicant as a clearing and forwarding agent. They highlighted that the applicant deposited a non-refundable amount for appointment as a Depot Operator and is responsible for transport and maintenance of records. The revenue relied on a Tribunal decision to support the inclusion of isolated freight forwarding activities under 'C&F Operation'. The Tribunal examined the agreement terms and noted the responsibilities of the applicant in transporting goods, maintaining records, and operating the depot.

Issue 3: Application of Legal Definition
The Tribunal referred to Section 65(25) of the Finance Act which defines a Clearing and Forwarding Agent as a person engaged in providing services connected with clearing and forwarding operations. Considering the applicant's responsibilities in transporting goods, maintaining the depot, and accounts, the Tribunal found that the applicant's activities align with the definition of a clearing and forwarding agent. Consequently, the Tribunal ruled that total waiver of service tax was not warranted. The Tribunal directed the applicant to deposit Rs. 20 lakhs in addition to the amount already paid within eight weeks, with the remaining service tax and penalties waived upon compliance.

In conclusion, the Tribunal's decision hinged on the interpretation of the applicant's activities in light of the legal definition of a clearing and forwarding agent. The ruling emphasized the responsibilities outlined in the agreement and determined that the applicant's role aligned with the definition, leading to the directive for partial payment and waiver of remaining service tax and penalties upon compliance.

← Previous Next →