9911796707
TMI Blog2013 (8) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case are that on examination of records of the assessee for the period 2001-02 to 2004-05 it was pointed out that assessee received an amount of Rs. 1,46,05,000/- from M/s Hindustan Lever Ltd. (HLL) for carrying out services of cold storage/clearing and forwarding operations of frozen products. According to department, the said service is chargeable to service tax. A Show-Cause Notice dated 21.7.2006 was issued to the assessee demanding service tax amounting to Rs. 9,46,766/- along with interest and also proposing penalties on the assessee. The notice, after due process was adjudicated by Additional Commissioner vide Order-in-Original No. 06/GZB/2007 dated 31.7.207 confirming service tax, interest and imposing penalties of Rs. 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2010) 34 VST 27 (Ker.). He further points out, that assessee is not engaged in any clearing corporation and as such in view of decision of Punjab & Haryana High Court in case of CCE Vs. Kulcip Medicines (P) Ltd. - 2009 (14) STR 608 assessee's activity does not fall under C&F service also. He submits demand is also hit by time limitation as assessee has replied vide their letter dated 8.11.2002 and 9.12.2002, department's letter dated 27.9.2002 and 20.11.2002, which shows the facts were in the knowledge of the department since 2002. Therefore extended period of limitation cannot be invoked in this case. 4. Ld. Additional Commissioner (A.R.) for Revenue submits that assessee is a consignee for goods received from HLL and is consignor for g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) of the Finance Act which provides that Clearing and forwarding agent means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent. 8. We find that assessee is receiving frozen food from HLL, storing the goods in cold storage and thereafter dispatches the goods as per directions of principal. They have entered into an agreement in which M/s Monsanto Manufacturers Pvt. Ltd. is shown as Clearing and Forwarding Agent (in short, C&FA). Also clause 5 of Article 1, C&SA is defined which operates as principal's agent for receiving and forwarding goods and for undertaking other functions. Assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under service which gives essential character of the service. We have already held that storage of frozen goods in cold storage is an inseparable part of assessee's activity of clearing & Forwarding operation. We are therefore of the view that essential character of service is C&FA service and therefore service is classifiable under C&FA service. 12. Ld. Advocate has contended that assessee is not involved in clearing operation and therefore not covered under C&FA service in view of the decision of High Court of Punjab & Haryaba in case of Kulcip Medicines (P) Ltd. case. We find that the issue was never raised by the assessee before lower authorities. Being the question of fact, we cannot go into this issue at this stage and do not acce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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