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TMI Blog2015 (7) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... such as billing, collection or recovery of cheques/accounts and remittance, evaluation of prospective customer and public relation service. The show cause notice dtd 1.9.2004 was issued for the period 1.7.2003 to 31.3.2004 proposing demand of tax under the category of BAS. But, the second show cause notice dtd 21.10.2004 was issued for the period October 1999 to June 2004 proposing the demand of tax under the category of C&F agent for the same activities, rendered by the appellant. The facts of the case in both the adjudication orders are contrary and misconceived. - findings of both the adjudicating authorities are contrary on facts and law of the case, which cannot be improved by letter dtd 18.5.2015 of the Joint Commissioner of Central Excise, Customs and Service Tax. In our considered view, the Adjudicating Authority should have decided both the show cause notices together and after determining the facts of the case in proper manner, the classification of the service would be decided. It should be noted that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. So, both the impugned orders cannot be sustained. - Decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.10.2004 and confirmed the demand of Service Tax alongwith interest and imposed penalties under the various provisions of the Finance Act 1994 under the category of Clearing and Forwarding Agents service for the period Oct. 1999 June 2004. The appellants filed appeal No.ST/10408/2013 (in short 2nd appeal) against the impugned adjudication order dtd 31.12.2012. 4. The Learned Advocate on behalf of the appellants submits that they were rendering services to their clients as Commission Agent for the purpose of sale of the goods. They entered into agreement with their clients as Commission Agents, which was termed as Dealers Agreement. The agreement would clearly indicate that they were rendering the services to their clients as Commission Agent for the purpose of sale of goods and there was incidental activities in relation to the said sale. He drew the attention of the Bench to the relevant portion of the agreement to substantiate that the predominant character of agreement is sale of goods and therefore they are eligible for the benefit of exemption of Notification No 13/2003-ST(supra). He is not disputing the classification of the service under Business Auxiliary Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly evident from the record that the Dept was well aware of the activities of the appellant as per earlier show cause notice dtd 1.9.2004 which is issued for the normal period. 4.5 He relied upon the decision of the Tribunal in the case of CCE, Allahabad vs Chandan Chemicals [2007(7)STR.578(Tri.Del.)]. In that case, the demand was raised under the category of BAS and the Tribunal allowed exemption benefit under notification No 13/2003-ST (supra). The Dept. has already registered them under the category of BAS and therefore demand of Service Tax under C F Agent for the same service cannot be sustained. 5. On the other hand, the Learned Authorised Representative for the Revenue reiterates the findings of the Adjudicating Authorities. He drew the attention of the Bench to the agreements between the parties. He submits that Clause 5 of the agreement dtd 1.1.2003 would clearly show that the appellant discharged activities of the sales and the service. Thus, it is not a case of mere agreement of sales. He further drew the attention of the Bench to Clause 7 of the agreement. It is submitted that the after reading the clauses of the agreement, it is not only for sales of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (iv) of the definition of BAS. Clause 3(iii) and (iv) of the definition of BAS provides any Customer Care Service provided on behalf of the client or any incidental or auxiliary support service such as billing, collection or recovery of cheques/accounts and remittance, evaluation of prospective customer and public relation service. 8. In the second appeal, the Adjudicating authority vide order dtd 31.12.2012, observed that the appellant provided facility for storage of goods manufactured by the principals with the help of 250 personnel posted in 14 branches all over India. They were executing the instructions of the principals. The appellant provided to the principal the report covering the stock of goods supplied by the principal in the current month, forecast of sale, such other and or further information or particular such principal may from time to time required. The Adjudicating Authority has observed the activities undertaken by the appellant covered under Clearing and Forwarding Agent Service. The CBEC vide circular 39/2/2002 dtd 20.2.2002 clarified the scope of C F agents. Normally, C F agents job of clearing and forwarding, in a typical situation of C F agents are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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