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TMI Blog2015 (7) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, it would cover under the definition of Clearing and Forwarding Agent - Decided in favour of Revenue. - Appeal No. ST/75/2007, Appeal No. ST/92/2011 - Order No. A/10868-10869/2015 - Dated:- 25-6-2015 - Mr. P.K. Das, Member (Judicial) And Hon ble Mr. P. M. Saleem, Member (Technical),JJ. For the Petitioner : Shri Jitendra Nair, Authorised Representative For the Respondent : Shri Jigar Shah, Advocate ORDER Per: P.K. Das A common issue is involved in these appeals and therefore, both are taken up together for disposal. 2. The relevant facts of the case, in brief, are that the Assessee were registered with service tax authorities under the category of Business Auxiliary Service as Commission Agent . A Show Cause Notice dt.13.04.2006 was issued proposing demand of service tax of ₹ 5,27,103.00 along with interest and to impose penalty considering the services rendered by the Assessee would be covered under the category of Clearing and Forwarding Agent service as defined under Section 65 of the Finance Act, 1994 during the period from 01.10.2000 to 31.03.2005. The Adjudicating authority confirmed the demand of service tax along with interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 (SC). He further submits that the Tribunal in the case of Transasia Sales Syndicate (supra) followed the earlier decision of the Tribunal in the case of Mahavir Generics Vs CCE Bangalore 2004 (170) ELT 78 (Tri-Del). It is submitted that the Hon ble Punjab Haryana High Court in the case of CCE Panchkula Vs Kulcip Medicines (P) Ltd 2009 (14) STR 608 (P H) held that in order to cover within the definition of Clearing and Forwarding Agent service, it is required both the clearing and forwarding of the goods. In the present case, the activities of clearing and forwarding of the Assessee are absent. The decision of the Hon ble Punjab Haryana High Court was upheld by the Hon ble Supreme Court as reported in 2012 (25) STR J126 (SC). He further submits that the Assessee was registered with the Department under Business Auxiliary Service and therefore, the Revenue cannot change their stand subsequently and relied upon the decision of the Tribunal in the case of R.K. Paliwal Vs CCE Kanpur 2012 (26) STR 567 (Tri-Del). It is submitted that Hon ble Supreme Court in the case of Coal Handlers Pvt. Ltd Vs CCE Kolkata-I, by judgment dt.05.05.2015 in Civil Appeal No.7215 of 2004 had taken s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se or take the goods either themselves, or their relatives or nominees or benomies either directly or indirectly. 6. The definition of Clearing and Forwarding Agent under Clause (25) of Section 65 of the Finance Act, 1994, as it stood during the relevant period, is reproduced below:- 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. 6.1 With effect from 01.07.2003, the service tax was levied under the category of Business Auxiliary Service. On 10.07.2004, the definition of Commission Agent was incorporated in the Explanation (a) under sub-clause (vii) of clause (19) of Section 65. It states that - 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 or services or documents of title to such goods or services; or ii) collects payment of sale price of such goods or services; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll remain the sole property of the Company until sold. Upon reading of the above clauses and Clause (6) as relied upon by the learned Advocate, it is clear that the Company entrusted the Assessee as a Depot Manager for clearing and handling of the goods, in their depot upto the sale of the goods in the market. The definition of Clearing and Forwarding Agent covers any service either directly or indirectly connected with clearing and forwarding operation in any manner. The expression in any manner has wide amplitude. The definition of Commission Agent would apply predominantly on sale or purchase of the goods. In the present case, we find that the appointment of the Assessee is not as a Commission Agent, but for Depot Manager, and therefore, it would cover under the definition of Clearing and Forwarding Agent . 9. The learned Advocate strongly relied upon the decision of the Tribunal in the case of Transasia Sales Syndicate (supra), which has followed the decision of the Tribunal in the case of Mahavir Generics (supra). On perusal of the decision of Mahavir Generics (supra), we find that the Principal has agreed to appoint the agent as a consignment agent for the sale of the prod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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