2009 (7) TMI 518 - AT - Service Tax

Clearing and forwarding agent- The assessee had entered into an agreement with BPCL, wherein it undertook to receive the lubricants dispatched by BPCL at a godown and arrange its safe storage and sell the same on behalf of BPCL. The revenue treated the said services of the assessee under the category of clearing and forwarding agent and made a demand of service tax. Held that- in the light of the judgment of Larson & Toubro Ltd. v. CCE 2006 4 STT 231 (New Delhi - CESTAT), the assessee was neither involved in clearing activity nor in forwarding activity. It only arranged for receipt, storage and sale of the lubricants on behalf of principal, thus the demand is not sustainable.

Summary

Issues:
1. Whether the appellant's activities fall under the category of Clearing & Forwarding services.
2. Validity of the agreement between the parties.
3. Examination of the invoices by the authorities.
4. Interpretation of the definition of "Clearing and forwarding agent" under section 65(25) and section 65(105)(j) of the Finance Act, 1994.

Analysis:

Issue 1:
The appellant argued that their agreement with BPCL did not involve any clearing and forwarding services, relying on a specific clause in the agreement. The judicial member noted that the authorities failed to identify the relevant documents relied upon and did not follow the principles of natural justice. The Tribunal found that the appellant's activities did not constitute clearing and forwarding services, leading to the appeal being allowed.

Issue 2:
A dispute arose regarding the validity of the agreement as the respondent pointed out that BPCL had not signed the document. However, the appellant contended that BPCL's signature was present at the end of the agreement, which was acknowledged by the authorities. The Tribunal accepted the validity of the agreement as signed by BPCL.

Issue 3:
The technical member highlighted that the authorities did not examine the invoices issued by the appellant to ascertain the nature of their services. This failure to consider crucial evidence was noted, further supporting the appellant's position that they were not providing clearing and forwarding services.

Issue 4:
The Tribunal extensively analyzed the definition of "Clearing and forwarding agent" under the Finance Act, 1994, along with relevant circulars and judgments. It was established that the appellant's activities, as per the agreement with BPCL, did not align with the characteristics of a clearing and forwarding agent. The Tribunal referred to precedents and clarified that mere sale of goods on behalf of the principal did not constitute clearing and forwarding services. The Tribunal set aside the service tax demand and penalty imposed on the appellant, concluding that their services did not fall under the definition of C&F Agent's service.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing that their activities were not akin to clearing and forwarding services as defined under the Finance Act, 1994. The judgment underscored the importance of a thorough examination of relevant documents and adherence to principles of natural justice in legal proceedings.