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TMI Blog2007 (9) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... n confirmed besides penalty at the rate of Rs200/- per day under Section 76 and Rs.1,000/- under Section 77. The appellants were exporting pharmaceutical products. They have appointed one M/s. Cross Links as a promoting agent to market the product of the assessee in Bangladesh. The Revenue proceeded to levy Service tax on the appellants on the ground that they have rendered service under the category of Clearing Forwarding Agents. The appellants denied that they have carried on any activity under the Finance Act for levy of Service tax more particularly, under the category of C F Agents. The Assistant Commissioner gave a detailed finding accepting the assessee's plea. While doing so, he examined the activity of M/s. Cross Links, Banglades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the relationship between the service provider and receiver should be in the nature of principal (owner) and agent. The C F Agent carries out all the activities in respect of goods right from stage of their clearances from the premises of the principal to its storage and delivery to the customers. (iv) Now the term "Consignment Agent" is also included in the definition of C F Agent and as it has not been specifically defined, it can be construed in common commercial practice, the principal send the goods to the Consignment Agent known as consignee for the purpose of sale and distribution. The consignee is entitled for agreed commission/remuneration for his services. (v) A Consignment agent's job is to receive the goods from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neration is paid for such services to the said agent", but as per the Laghu Udyog Bharti's case, Service Tax (Second Amendment) Rules, 1999, w.e.f. 1-9-99, the C F Agent was made li able to pay SI, in the instant case M/s. Cross Links, Bangladesh is the Service provider, providing service for the period from 1-1-2003 to 30- 11-2003, who is a foreigner and is not bound by the laws in force in India. 12. In a nutshell, the issue involved in this case is M/s. Cross Links, Bangladesh, was appointed as a promoting agent to market the product of the assessee in the jurisdiction of Bangladesh which are beyond the territorial waters of India. Since Service tax being the consumption based tax as the service and is rendered beyond the territory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the introduction of Section 65(105) and provisions of Section 64. It is the appellant's contention that the Review Order is without jurisdiction and the order passed by the Assistant Commissioner is a correct one in view of the fact that no Service Tax can be demanded under Rule 2(1)(d)(iv) of the Rules since entire services were provided outside India i.e. in Bangladesh and Service Tax is destination based consumption tax. In this regard, the Board's Circular No. 56/5/2003-S.T. dated 25-4-2003 is relied. The learned Counsel also relies on the Larger Bench ruling rendered in Larsen Toubro Ltd. v. CCE, Chennai - 2006 (3) S.T.R. 321(Tri.-LB) which also has considered the aspect pertaining to the category of Clearing Forwarding Agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter was not challenged by them and, therefore, they cannot raise the plea pertaining to the tax ability under the category of Clearing Forwarding. 4. In reply, the learned Counsel point out from the Order-in-Original that the findings were in their favour inasmuch as the Assistant Commissioner clearly held that the Agent in Bangladesh was liable for Service Tax, as he was the Clearing Forwarding Agent and as he was situated outside the country, he cannot be brought within the ambit of Service Tax. Therefore, the findings rendered by the Commissioner that they have not challenged the aspect of assessment is not correct. The Assistant Commissioner had clearly held that the assessee were not C F Agent and he submits that in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Commissioner (Appeals). In the case of Larsen Toubro Ltd ., the Larger Bench has held that mere activity of forwarding or booking orders by itself will not bring the Indenting Agent under the C F category. Like wise, the activity of Del Credere Agent does not' come within the C F category. In the case of Chennai Telephones as well as in the case of CCE, Chennai v. M.R.F. Ltd. - 2006 (3) S.T.R. 434 (Tribunal) = 2005 (179) E.L.T. 472 (Tri.-Chennai), it has been held that subsequent clarifications will not be applicable to past cases. In view of the well taken stand by the appellants, which was accepted by the Assistant Commissioner, I find no reason to uphold the impugned order. The order passed by the Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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