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TMI Blog2005 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... r the services rendered by the appellant, towards sales and services of equipment the principal was to pay agency commission to the appellant as per the rates and other terms as per the annexure to the agreement. The rate of agency commission payable to the appellant was to be annually reviewed and set through mutual negotiations, so that the profit gained by the principal on the EBT basis from the business of sale of equipment under the agreement was equal to the profit gained by the appellants on EBT basis from the business, as contemplated by article 3.3. Article 7 dealt with quantity of minimum purchase. As regards delivery, it was provided in Annexure B to the agreement that, the delivery of the products was to be made on 'ex-work basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of convenience reproduce Para 9 from the judgment of Prabhat Zarda (supra): "9.We have considered the submissions made from both the sides. The main contention of the appellants is that M/s. RZC cannot be held to be a clearing and forwarding agent of M/s. Prabhat Zarda factory inasmuch they do not undertake the activities as enumerated in the Mumbai Commissionerate's Trade Notice relied upon by them. However, we find that, that in the very same trade Notice, it is mentioned that clearing and forwarding agent has been defined as any person who is engaged in providing any service, either directly or indirectly connected with clearing and forwarding operations in any manner to any other person and includes a consigning agent. The details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tobacco product being manufactured by M/s. Prabhat Zarda Factory. It is further seen that the taxable service has been defined as any service provided by clearing and forwarding agent 'in relation' to clearing and forwarding operations in 'any manner' (Emphasis supplied). From the above, it is clear that the service has to be relatable to the clearing and forwarding operations and can be in any manner and it is not necessary that the said agent must deal with the goods directly. As such, we are of the view that the lower authority has rightly concluded that M/s. RZC is a clearing and forwarding agent of M/s. Prabhat Zarda Factory and services provided by them are liable to tax." 3.During the hearing of the appeal, heavy reliance was pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring and forwarding operation has a very specific connotation in the field of movement of goods to their destination and clearing and forwarding operators may not at all be concerned with procurement of order. Procurement of orders and clearing and forwarding operations are activities quite distinct from each other. A person who is appointed to be a commission agent for procuring orders for the principal cannot insist on providing services as clearing and forwarding agent, which may be entrusted by the principal to some other person or it may not be necessary so to entrust, when the buyer is under the obligation to take delivery of the goods from the manufacturer's premises. Nor can a person entrusted only with clearing and forwarding wor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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