2017 (4) TMI 705 - AT - Service Tax

Clearing such activities under the agreements confirm to both clearing as well as forwarding of goods. Held that - to fall under the purview of taxable service both clearing and forwarding activities should be provided by the service provider. This fact is evident from the word and used after the word clearing but before the word forwarding in clause (j) of Section 65 (105) ibid. Thus the word and placed in between the words clearing and forwarding should be considered in a conjunctive sense. The goods were consigned by the principals to the appellant s premises and the appellant did not undertake any clearing activity. Since the appellant is not undertaking the activities of both clearing and forwarding service tax would not be leviable on the activity of mere forwarding and other incidental and ancillary activities with reference to goods. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Whether the appellant is liable to pay service tax on clearing and forwarding services provided to clients.
- Interpretation of the statutory definitions of taxable service related to clearing and forwarding.
- Analysis of agreements between the appellant and clients to determine the nature of services provided.

Analysis:

1. The appeal challenged an order passed by the Commissioner (Appeals) regarding the non-payment of service tax by the appellant for providing 'Clearing and Forwarding services' to various clients during the period April 2002 to March 2007.

2. The appellant argued that they did not engage in clearing goods from the clients' factories, only forwarding them as per instructions. They relied on previous Tribunal and High Court judgments to support their stance.

3. The Revenue contended that the appellant's activities, as per the agreements, involved both clearing and forwarding of goods, unlike the case cited by the appellant.

4. The Tribunal examined the statutory definition of taxable service for 'Clearing & Forwarding' under the Finance Act, 1994, emphasizing that both clearing and forwarding activities must be provided to attract service tax.

5. The terms of agreements with clients, such as Cadbury India Ltd., Wrigley India Pvt. Ltd., Bata India Ltd., and Dumex India Pvt. Ltd., were analyzed to determine if the appellant performed both clearing and forwarding activities.

6. The Tribunal noted that the appellant did not engage in clearing activities based on the agreements reviewed, which led to the conclusion that service tax was not applicable solely for forwarding and related activities.

7. Referring to the Kulcip Medicines case, the Tribunal reiterated that the levy of service tax is limited to providing both clearing and forwarding activities, and not just one of the two.

8. The Tribunal highlighted previous judgments where the Revenue's appeal against similar decisions was rejected by the Punjab & Haryana High Court and the Supreme Court, solidifying the legal position.

9. Considering the settled legal position and the absence of merits in the impugned order, the Tribunal allowed the appeal in favor of the appellant, setting aside the previous decision.

This detailed analysis of the judgment showcases the legal interpretation of taxable services, the significance of contractual agreements, and the application of precedent in determining the liability for service tax on clearing and forwarding services.