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TMI Blog2017 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... selling the goods to its buyers as per the terms of agreement between M/s.B.A.L. and the appellant. Thus, the appellant is effectively causing sale of goods on behalf of M/s.B.A.L. and not clearing and forwarding the goods - in an identical set of facts, this Tribunal in the case of D.R. Polymers [2013 (6) TMI 262 - CESTAT NEW DELHI] has held that no liability to pay service tax as C & F agent arises, when the service provider is free to sell the goods to the buyers arranged by him - appellant cannot be considered as C & F agent. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. ST/933/2010-ST [DB] - Final Order No. 56097/2016 - Dated:- 26-12-2016 - S. K. Mohanty, Member (Judicial) And Ashok K. Arya, Member (Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Agent' service. Feeling aggrieved with the impugned order, the appellant is in appeal before this Tribunal. 2. Shri Rachit Jain, the ld. Advocate appearing for the appellant submitted that the appellant is not undertaking any clearing and forwarding work and is acting as consignment sales agent of B.A.L. and in consideration thereof, receives commission; that the goods are being received at the premises of the appellant on stock transfer basis and the same is being sold by the appellant to its own customers as per the agreement entered into between the appellant and BAL; that the appellant also receives cost discount and quantity discount and overriding commission for facilitating the business and efficient functioning. Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Clearing Forwarding operations in any manner to any other person and includes a consignment agent; 6. As per the above definition, in order to be covered under taxable service, the agents must undertake the activities of clearing and forwarding of goods. However, the Finance Act, 1994 has not specified about the role and functions performed by a clearing and forwarding agent, for the purpose of categorization under the said service. Upon analysis of the above definition together with the dictionary meaning contained in different dictionaries, the Hon ble Supreme Court in the case of Coal Handlers Pvt. Ltd. (supra) have defined what would constitute clearing and forwarding operations. The relevant portion in the said judgment is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Company from time to time. ( Emphasis supplied ) 8. On perusal of the above condition, it reveals that the appellant is neither clearing the goods for M/s.B.A.L. nor dispatching the goods at the directions of M/s. B.A.L. The appellant itself identifies and is selling the goods to its buyers as per the terms of agreement between M/s.B.A.L. and the appellant. Thus, the appellant is effectively causing sale of goods on behalf of M/s.B.A.L. and not clearing and forwarding the goods. 9. In an identical set of facts, this Tribunal in the case of D.R. Polymers (supra) has held that no liability to pay service tax as C F agent arises, when the service provider is free to sell the goods to the buyers arranged by him. The releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Larger Bench of the Tribunal in the case of Larsen Toubro Ltd. the reported 2006 (3) S.T.R. 321 (Tri.-LB). It was held that C F agents services are essentially in connection with clearing and forwarding operations of the principal. 6. In view of the terms of the agreement between the respondent and their principal, we note that the respondents were free to sell the goods to their own customers and were not merely dispatching the goods on the orders of their principal. Further, the invoice was being issued by the respondent themselves. As such we agree with the conclusion adopted by the Commissioner (Appeals) that the respondent can not be held to be C F agent. Further we note that apart from various decisions relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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