2013 (6) TMI 262 - AT - Service Tax

Clearing and forwarding agent (C&F) service - Held that - assessee (respondents) were free to sell the goods to their own customers and were not merely dispatching the goods on the orders of their principal. - the invoice was being issued by the respondent themselves. - respondent can not be held to be C & F agent. - Decided in favor of assessee.

Summary

Issues:
1. Whether the respondent can be held as a clearing and forwarding agent of their principal.

Analysis:
The appeal was filed by the Revenue against the Commissioner's order dropping the Show Cause Notice issued to the respondent regarding the demand of services tax for providing services as a C & F agent. The Commissioner analyzed the agreements between the respondent and their principals. The key issue was whether the respondent was dispatching goods as per the principal's directions or selling goods independently. The Commissioner noted that the respondent was selling goods on their own to customers, not as per the principal's directions. The Commissioner also referred to Board Circular No. 59/8/2003-S.T. and various Tribunal decisions to support the conclusion that the respondent was not a C & F agent, as they were not selling goods on behalf of the principal on a commission basis.

The issue to be decided was whether the respondent could be considered a clearing and forwarding agent of their principal. The scope of services of a C & F agent was clarified by the Board, emphasizing that a C & F agent receives dispatch orders from the principal and prepares invoices on behalf of the principal. The Tribunal's Larger Bench decision in Larsen & Toubro Ltd. further confirmed that C & F agent services are related to the clearing and forwarding operations of the principal. The agreement between the respondent and their principal allowed the respondent to sell goods to their customers independently, issuing invoices themselves, leading to the conclusion that the respondent could not be classified as a C & F agent.

The Tribunal found no infirmity in the Commissioner's order and rejected the Revenue's appeal. The Tribunal also highlighted the decisions of the Punjab & Haryana High Court and the Supreme Court affirming that the respondent was not a C & F agent. The Tribunal dismissed the Revenue's reliance on certain Tribunal decisions that were based on a Larger Bench decision overruled by the Punjab & Haryana High Court and confirmed by the Supreme Court. The judgment upheld the Commissioner's decision that the respondent was not a C & F agent based on the terms of the agreement and the nature of the services provided.

(Order pronounced in the open Court.)