2009 (5) TMI 83 - AT - Service Tax

Refund of erroneous payment - The appellants during the period from 1-1-03 to 31-3-04 paid the service tax amount of Rs. 1, 46, 639/-. Consequently noticing that they should not have paid this amount filed a refund claim with the appropriate authorities. A show cause notice was issued proposing to reject the said refund claim under the provisions of Section 11B. The adjudicating authority rejected the refund claim filed by the appellant on the ground that they received commission and are in agreement with the Principal as a Consignment Agent and such Consignment Agents is covered under the definition of C&F Agents held that - Since it can be seen that the issue involved in the case before us is identical to the issue in which a question of law was answered by the Hon ble High Court in favour of the assessee respectfully following the same we find that the impugned order is not sustainable and is liable to be set aside and we do so refund allowed

Summary

Issues:
1. Whether the services provided by the appellants as a Consignment Agent fall under the category of Clearing and Forwarding Agent.
2. Whether the appellants are liable to pay service tax under the category of "clearing and forwarding Agent" when no clearing activity from the manufacturer's premises is directly undertaken by the agent.

Analysis:

1. The appeal was against the rejection of a refund claim by the appellant, who had registered as a clearing and forwarding agent and paid service tax. The issue was whether the appellant's activities qualified as that of a Clearing and Forwarding Agent. The adjudicating authority rejected the refund claim, stating that the appellant, receiving commission and acting as a Consignment Agent, fell under the definition of C&F Agents. The appellants argued that they were not C&F Agents but dealt with agricultural products for sale to customers, receiving commission from principals. They cited a relevant decision by the High Court to support their claim.

2. The Commissioner (Appeals) upheld the original order, emphasizing that the appellants' activities were covered under Clearing and Forwarding services due to receiving commission. The issue of unjust enrichment was raised by the JCDR, asserting that the appellants had received commission. However, the appellants argued that they had not passed on the tax burden to others, negating the unjust enrichment claim. The Tribunal analyzed the submissions and records to determine whether the appellants' services as a Consignment Agent aligned with the Clearing and Forwarding Agent category.

3. The Tribunal found that the appellant's role involved receiving and storing goods, not clearing them from the Principal's premises. Referring to a previous Tribunal decision, which was upheld by the High Court, the Tribunal concluded that the activities of the appellants did not constitute Clearing and Forwarding services. The High Court had ruled in a similar case that no service tax was payable under the C&F Agent category if the agent did not directly undertake clearing activities from the manufacturer's premises. Consequently, the Tribunal set aside the impugned order, allowing the appeal with consequential relief.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision based on legal interpretations and precedents.