2007 (9) TMI 186 - AT - Service Tax

Agent appointed in Bangladesh by exporter for getting orders explanation added subsequently to Section 65(105) cannot be applied for the period in question - held that mere activity of forwarding or booking orders by itself will not bring the Indenting Agent under the C&F category appeal allowed

Summary

Issues:
1. Whether the appellants are liable to pay Service tax as Clearing & Forwarding Agents for appointing an agent in Bangladesh.
2. Jurisdiction and applicability of Service tax laws in cases of services provided outside India.
3. Challenge to the Commissioner's review order regarding the liability of the appellants as C&F Agents.

Analysis:

Issue 1:
The Assistant Commissioner initially reversed the dropping of proceedings by confirming Service tax and penalty against the appellants for appointing M/s. Cross Links as a promoting agent in Bangladesh. The issue revolved around whether the appellants' activities fell under the category of Clearing & Forwarding Agents, as defined by Section 65 of the Finance Act. The Assistant Commissioner examined the nature of C&F operations and concluded that the service provided by M/s. Cross Links did not attract Service tax as it was rendered outside India. The judgment cited the Supreme Court's ruling that the liability for Service tax in C&F operations lies with the C&F Agent, emphasizing that the service provider should be liable to pay tax, which did not apply in this case due to the foreign nature of the service provider.

Issue 2:
The Commissioner's review order challenged the Assistant Commissioner's decision, arguing that the service provided in Bangladesh related to goods exported from India, making the appellants liable for Service tax under the C&F Agent category. The review order contended that the deeming provision and Section 64 of the Finance Act did not apply to the period in question (January 2003 to November 2003), and the service should be deemed to have been provided in India. The appellants, supported by legal arguments and precedents, asserted that the service was consumed outside India, and the Board's Circular and relevant case laws supported their position that the export activities did not fall within the C&F Agent category.

Issue 3:
The final judgment analyzed the facts and established that the appellants were manufacturers and exporters, not C&F Agents, as they exported their own goods to Bangladesh through an appointed agent. The judgment emphasized that the appellants did not act as agents for manufacturers to clear and forward goods but solely as exporters. It highlighted that the introduction of the explanation to Section 65(105) and proviso to Section 64 did not apply to the period in question, and the appellants were not liable for Service tax as C&F Agents. The judgment rejected the Commissioner's plea that the appellants did not challenge the Assistant Commissioner's findings, clarifying that the Order-in-Original did not fix any liability on the appellants. The judgment concluded that the appeal was allowed, upholding the Assistant Commissioner's decision, and there was no merit in the impugned order.

This detailed analysis of the judgment outlines the legal intricacies and arguments presented in the case, providing a comprehensive understanding of the issues addressed and the final decision rendered by the tribunal.