2010 (2) TMI 171 - HC - Service Tax

Clearing and forwarding agent services- the appellant was that they are consignment agents of two manufacturers, namely, Bayer ABS Limited and SRF Polymers Limited. It was their case that they being consignment agents and stockists are not liable to pay service tax, as they are neither clearing agents nor forwarding agents. In the light of the decision of CCE v. Kulcip Medicines (P.) Ltd. 2009 -TMI - 33117 - PUNJAB AND HARYANA HIGH COURT, held that- appellant being a consignment agent, is not liable to pay service tax under the category of C&F agent. Thus, allow the appeal.

Summary

Issues:
1. Liability of consignment agents to pay service tax under the category of C & F agents
2. Limitation period for issuing the notice under section 73 of the Finance Act
3. Invocation of extended period of limitation without justification

Analysis:

Issue 1:
The appellant challenged the order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, which held them liable to pay service tax as consignment agents of two manufacturers. The Commissioner (Appeals) had initially ruled in favor of the appellant, citing precedent in Mahavir Generics v. CCE. However, the Appellate Tribunal relied on the decision in Medpro Pharma (P.) Ltd. v. CCE to assert the liability of consignment agents to pay service tax under the category of C & F agents. The High Court, referencing CCE v. Kulcip Medicines (P.) Ltd., concluded that consignment agents are not liable to pay service tax under the category of C & F agents, overturning the Tribunal's decision.

Issue 2:
The High Court addressed the question of whether the notice dated 10-6-2004 was issued beyond the period of limitation under section 73 of the Finance Act. However, once it was established that the appellant, as a consignment agent, was not liable to pay service tax under the category of C & F agents, this issue became redundant and was not further addressed.

Issue 3:
Regarding the invocation of the extended period of limitation without justification, the High Court did not delve into this issue as it was rendered moot by the decision that consignment agents are not liable to pay service tax under the category of C & F agents. Consequently, the appeal filed by the appellant was allowed, setting aside the Appellate Tribunal's order while upholding the Commissioner (Appeals) order in favor of the appellant.