2018 (6) TMI 746 - AT - Service Tax

Classification of Services - receipt of the goods dispatched by the principal from their factory, warehousing the same and arranging to dispatch the goods as per the directions of the principal, along with invoicing the same to the ultimate customers - Clearing and Forwarding Agent Service or not? - CBEC vide Circular dated 10/07/1997 - Held that - The appellant has not acted as an agent of M/s Oswal. Though they have been entrusted with the responsibility of receiving the goods at railway siding and storing the same in the godown as also loading of the same onto the truck, it cannot be said that the appellant has acted as agent of the principal least of all as a C & F Agent of the principal - the appellant cannot be said to have acted as C & F Agent of M/s Oswal, as appearing from the agreements on record - demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to Order-in-Original regarding Service Tax liability under Clearing and Forwarding Agent Service.

Analysis:
The appeal challenged an Order-in-Original that upheld a demand for Service Tax against the appellant, who was appointed as a Handling and Transporting Agent by a company. The Revenue claimed the activities carried out by the appellant were liable for Service Tax under Clearing and Forwarding Agent Service. Initially, the demand was dropped by the Original Adjudicating Authority, but a subsequent Order-in-Review by the Jurisdictional Commissioner reinstated the demand along with interest and penalties, leading to the appeal.

The appellant argued that the activities performed did not fall under Clearing and Forwarding Service, citing the Original Authority's view that the appellant primarily rented a godown to the company. The appellant contended that the activities were not covered within the definition provided by a Circular issued by the CBEC. On the other hand, the Revenue justified the demand, emphasizing that the appellant's activities included transportation and loading of material, aligning with Clearing and Forwarding Service criteria.

Upon reviewing the agreements between the appellant and the company, it was found that the responsibilities included receiving, unloading, and transporting goods, as well as renting a godown and loading material for transportation to customers. The Circular outlined activities expected from a Clearing and Forwarding Agent, emphasizing receiving goods, warehousing, dispatching, invoicing, and maintaining records, which the appellant did not fully perform as an agent of the company.

The Tribunal concluded that the appellant did not act as an agent of the company, especially not as a Clearing and Forwarding Agent, based on the agreements and activities performed. Consequently, the levy of Service Tax under that category was deemed unjustified, leading to the setting aside of the impugned order and allowing the appeal.