2007 (12) TMI 30 - AT - Service Tax

Commission received against procurement of order activity of mere procurement of order on behalf of principal is not taxable under clearing & forwarding agent service such orders are placed & executed by the buyer & seller (principal) not liable to tax

Summary

Issues:
1. Whether commission received for procurement of orders on behalf of principal is liable to pay service tax.

Analysis:
The main issue in this case revolves around determining the liability to pay service tax on the commission received for the procurement of orders on behalf of a principal. The appellant's counsel argued that the appellant should be exempt from service tax based on factual findings that only involved the procurement of orders without any liability attached to the appellant regarding the goods. The counsel relied on the decision of Larsen & Toubro Ltd. v. Commr. of Central Excise, Chennai, which overruled the Prabhat Zarda judgment. It was emphasized that the Medpro judgment, rendered after the L&T judgment, did not cover the appellant's case. The counsel further highlighted that other tribunal decisions, such as Opel Alloys Pvt. Ltd. and Gemini Associates, followed the judicial sanctity of the L&T judgment. The appellant contended that the revenue's reliance on the Super Poly Fabriks judgment was misplaced as it involved different factual circumstances related to the movement and handling of goods, unlike the mere procurement of orders in the present case.

The judgment also discussed the Medpro judgment, which dealt with whether the ancillary activity of procurement of orders should be considered part of the substantial activities of a Clearing and Forwarding (C&F) agency. The tribunal held that even if one segment of activities was not demonstrated, the appellants could still be engaged in taxable service due to the orchestrated nature of their work. The tribunal's analogy likened this situation to a symphony, where the absence of one instrument does not negate its role in the orchestra. The judgment clarified that the isolated activity of procurement could be covered under C&F operations, emphasizing the interconnected nature of such activities.

In conclusion, the tribunal analyzed the arguments presented by both sides and reviewed the relevant case laws to determine the appellant's liability for service tax on the commission received for the procurement of orders. It was established that the appellant's case did not align with the decisions cited by the revenue, such as the Super Poly Fabriks case, due to the distinct factual circumstances involved. The tribunal upheld the appellant's contention that the L&T judgment, which overruled the Prabhat Zarda decision, should be followed, emphasizing the importance of judicial discipline in rendering the decision in favor of the appellant.