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TMI Blog2013 (8) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether during the period w.e.f. 10-9-2004, they would be eligible for exemption under Notification No. 13/2003-S.T. as amended by Notification No. 8/2004-S.T had not been considered by the Commissioner (Appeals) - for this purpose the matter will had remanded back to Commissioner of Central Excise (Appeals). If service tax was chargeable on the Assesse’s service by treating the same as Business Auxiliary Service then longer limitation period would not be applicable and service tax would be demandable only for normal limitation period - Penalty u/s 76 and 78 would be liable to be waived u/s 80 and as such no penalty would be imposable - Matter Remanded Back regarding eligibility for exemption under Notification No. 13/2003-S.T., dated 1-3-2003 as amended by Notification No. 8/2004-S.T., dated 10-9-2004 in respect of period w.e.f. 10-9-2004 and qualification of Service tax demand which would be receivable only for normal limitation period, if it is held that the Appellant are not eligible for exemption vide Notification No. 13/2003-S.T. as amended by Notification No. 8/2004-S.T. - ST/684/2011 - 56194/2013(PB) - Dated:- 26-4-2013 - Ms. Archana Wadhwa and Shri Rakesh Kumar, JJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment agent is included in the definition of clearing forwarding agent . (iii) that it is relevant to look to the definition of commission agent and consignment agent . (a) The Commission agent is defined in the Explanation given under clause 65(19) under Business Auxiliary Service as under :- Commission agent means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person - (i) deals with goods or services or documents of title to such goods or services; or (ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; (b) The consignment agent is though included in the definition of clearing and forwarding agent , not defined in the context of service tax in the Finance Act. The Clearing Forwarding Agent Service is defined in clause (25) of Section 65, as follows :- Clearing and forwarding agent means any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds; c. Receiving dispatch order from the principal; d. Arranging dispatch of goods as per direction of the principal by engaging transport on his own or through the authorized transporters of the principal; e. Maintaining records of the receipt and dispatch of goods and the stock available at the warehouse; f. Preparing invoices on behalf of the principal (v) that in present case there is agreement made between the appellant and the principal companies who sends tea to appellant for sale in the state of Rajasthan. This agreement is known as Agent Agreement . Copy of few of such agreements is enclosed in the paper book. [PB 22-49] (vi) that the important terms and conditions mentioned in these agreements and the activities performed by the appellant during sale of tea of principal companies are as under :- a. The tea is dispatched by the principal company to appellant through transport. The companies used to send the Proforma invoice with the goods. On receipt of goods at Jaipur appellant makes payment of freight to the transporter which is reimbursed from the companies. b. Appellant warehouse the goods in their own godown or godown ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatively or quantitatively is loss of appellant and not of principal. k. The payment to principal company for the goods sent by them is made normally within 30 days. In some cases even advance payment is being made to the companies. In case of advance payment, appellant gets benefit of cash discount. l. As per the agency agreement, appellant is liable for any dispute arises in course of sale of tea. The principal has no concern/liability over it. m. Further the liability of sales tax, turnover tax payable to the state government is of the appellant. Principal companies have nothing to do with it. It is clearly stated in the agreement. (vi) that from the above it can be noted that working of appellant is not as of C F agent or consignment agent engaged in clearing or forwarding operations . A consignment agent receives the goods from the principal, stores them on behalf of the principal and when sale is made by the principal then dispatches the goods, to the customers on the direction of the principal. Whereas a commission agent s job is to cause sale/purchase on behalf of another person. This is an essential difference between the two agents. In case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repares the invoices on behalf of the principals. He is not free to sell the goods on its own. Inasmuch as the appellant in that case was selling the goods received from the principal, on his own and under the cover of his invoices and was paying sales tax on the same Tribunal held that he cannot be considered to be clearing and forwarding agent of the principal. 7. However the Appellant s stand from the very beginning has been that the service being provided by them, is the service of Commission agents included in the definition of Business Auxiliary Service and as they are acting as Commission agents in respect of tea, which is an agriculture produce, their service is fully exempt from tax under Notification No. 13/2003-S.T., dated 1-7-2003 as amended by 8/2004-S.T., dated 10-9-2004 while in going through the Appellant agreements with Tea companies. We are of the view that the service being provided by them, is the service of commission agents covered in the definition of Business Auxiliary Service . However their plea that they are fully exempt from Service Tax vide Notification No. 13/2003-S.T. are amended by Notification No. 8/2004-S.T., dated 10-9-2004 on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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