2009 (5) TMI 54 - AT - Service Tax

Clearing & Forwarding Agency appellant submits that the authorities below having misconstrued the transactions, brought the appellant to the tax which is not legally permissible Held that - The nature of transaction between Maruti Udyog and the buyer were sales of goods upon the order procured by the Maruti dealer which is the appellant. The invoices shown to us as appearing at pages 114 to 122 of the appeal folder were subject-matter of taxation under Central Sales Tax Act, 1956. The invoices clearly reflect that the buyer was the Commandant, Central Ordinance Depot and movement goods were from Gurgaon by Maruti to the buyer and that was at the risk of the buyer on delivery at Gurgaon itself. There is nothing available on the record to appreciate that the appellant acted as a consignee of the goods by the consignor Maruti Udyog Ltd. - a sale transaction cannot be converted into a service provided under the category of clearing and forwarding service demand set aside.

Summary

Issues:
Interpretation of transactions as Clearing & Forwarding Agency services by tax authorities.
Nature of transactions between Maruti Udyog and buyer under Central Sales Tax Act, 1956.

Analysis:
The appeal before the Appellate Tribunal CESTAT, New Delhi involved a dispute regarding the characterization of transactions made by Maruti Udyog Ltd. as seller of vehicles to a Central Government Department. The appellant argued that the transactions were wrongly categorized as Clearing & Forwarding Agency services by the tax authorities. The appellant contended that the orders could be procured by Maruti dealers and directly passed on to Maruti for execution, with Maruti Udyog paying consideration to the dealer for such purposes. The appellant emphasized that the mere procurement of orders for commission does not bring them under the purview of law, citing precedents such as Larsen & Toubro Ltd. v. CCE and CCE v. United Plastomers. The appellant sought relief, asserting that they were not liable for the tax imposed based on misconstrued transactions.

The Departmental Representative (DR) argued that information collected from Maruti Udyog indicated a consignor-consignee relationship, with pre-delivery inspection performed by the appellant, suggesting a clearing and forwarding agency nature of the transaction. However, after hearing both sides and examining the records, the Tribunal analyzed the definition of clearing and forwarding agency under section 65(25) of the Finance Act, 1994. The Tribunal determined that the transactions between Maruti Udyog and the buyer constituted sales of goods, with orders procured by Maruti dealers. Invoices presented as evidence showed that the buyer was the Commandant, Central Ordinance Depot, and the goods were delivered from Gurgaon to the buyer at the buyer's risk upon delivery in Gurgaon. The Tribunal concluded that the appellant did not act as a consignee of the goods, and the transactions could not be classified as a service under the category of clearing and forwarding service. Given the presence of all elements of a sale of goods, the Tribunal ruled that the appellant was not a service provider of taxable service in this appeal, supported by the Larger Bench decision referenced by the appellant.

In light of the findings, the Tribunal allowed the appeal, granting any consequential relief admissible under the law.