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TMI Blog2021 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... F INDIA LTD. [ 2018 (7) TMI 1373 - CESTAT KOLKATA] where it was held that It is seen that the Assessee paid the duty on the Invoice value and the Revenue had not disputed the fact that the assessee cleared the converted goods on payment of Central Excise duty - In as much the facts of the instant appeals and those involved and considered in the order are the same and involves the same parties, we are in agreement with the appellant s submission that the said order is also applicable to the instant appeals. In the instant appeals, it is also found from the records that the Department has not disputed the fact that the appellant had cleared the converted goods on payment of central excise duty and that the charges for freight is included in the invoice value - the impugned order not sustainable. Appeal allowed - decided in favor of appellant. - Service Tax Appeal Nos.176 to 183 of 2011 AND Service Tax Appeal Nos.70330 to 70331 of 2013 - FINAL ORDER NO. 75001-75010/2021 - Dated:- 5-1-2021 - SHRI P. K.CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P.ANJANI KUMAR, MEMBER (TECHNICAL) Dr.Samir Chakraborty, Senior Advocate Shri Abhijit Biswas, Advocate for the Appellant (s) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uered and Printed Sheets (hereinafter referred to as the said goods ) for TSL. (d) The appellant also appointed various consignment agents across the country jointly with TSL under tripartite agreements entered into by the parties concerned. (e) After manufacturing of the said goods the appellant sent the same to the said consignment agents in different parts of the country. The appellant paid handling charges to the said consignment agents for handlings TSL s said goods at the stockyards where they were sent @₹ 275.00 per MT for Mumbai and ₹ 250.00 per MT for all other places in India. The said amount was added/included in the assessable value of the said goods cleared on which central excise duty under the Central Excise Act were paid by the appellant. (f) The consignment agents duly paid service tax on the said handling charges received by them from the appellant. 4. In all the 10 show cause notices it was alleged that the appellant had received consignment agency charges of ₹ 250.00 and ₹ 275.00 respectively as per the agreement dated March 30, 1998 from TSL but had failed to discharge proper service tax on the same. On the said basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , both the parties having accepted the same and no appeal(s) having been preferred by the Revenue before any higher Court against the said order. (v) Hence, the instant appeals are also to be allowed, following the said order dated March 13, 2018 of this Tribunal and the impugned orders of the Commissioner of Central Excise Service Tax are to be set aside. 8. Shri T.Mondal, learned Authorized Representative for the respondent Revenue justified the findings of the Commissioner in both the impugned orders. 9. On perusal of the records, including the agreements, we find that the appellant s activities were limited to conversion of the raw materials supplied by TSL into finished goods and to send the said finished goods of TSL to the clearing and forwarding agent/consignment agent, appointed by the appellant and TSL jointly, who were situated at various parts of the country. 10. We also find that although the appellant had entered into the consignment agency agreement with TSL this agreement was never acted upon by the parties. The appellant also did not receive any amount from TSL as and by way of consignment agent or towards providing any consignment agency servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by TSL. I find that the central excise duty is paid on finished product after converting the raw material received from TSL. The assessable value in this case includes the freight/transportation of finished goods upto the place of stockyards/consignment agent appointed with the advice of TSL. Few relevant invoices were produced by the appellant showing the said freight/transport charges having been included in the assessable value. Since the excise duty has been paid on the freight/transport of ₹ 250/- or ₹ 275/- per matric tone, the service tax on such value/amount cannot be demanded. I also find that the title of this agreement is consignment agency agreement however no work of consignment agent as such has been carried by the appellant and whatever remuneration/charges were received on this account were added in the assessable value of the finished goods on which due excise duty was paid. Accordingly, the demand of service tax is not justified. Since demand is not there the question of interest and penalty do not arise. On perusal of the Grounds of Appeal we find that the Revenue had reproduced the portion of the Consignment Agent Agreement to establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced before us by him to canvass that the legislature intention is discernible from the scheme of the statute or from any other relevant material. Therefore the word 'and' should be understood in a conjunctive sense. (See Maharaja Sir Pateshwari Prasad Singh v. State of U.P. (1963) 50 ITR 731). In these circumstances if we read the word 'and' as 'or' then it would amount to doing violence to the simple language used by Legislature which cannot be imputed ignorance of English language. In that regard we place reliance on the judgement of Hon'ble the Supreme Court rendered in the case of Inayat Ali Khan v. State of U.P. (1971) 2 SCC 31 (Para 5) and para 6 of the judgement of Hon'ble the Supreme Court rendered in the case of Ape Belliss India Ltd v. Union of India (2001) 132 ELT 8. The observations of their Lordship reads thus: 6........ A plain reading of the Section (sic Tariff Public Notice) clearly shows, as contended by Mr. Bhatt, that for an alloy steel to be considered as stainless steel, it will have to satisfy two conditions i.e. The alloy steel should be known in the trade as stainless steel and further, it should contain 11% chrom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ern classical music. While listening to Mahler's 9th symphony, one does not listen to an individual violin or a trumpet, but the harmony emanating from many different seemingly unrelated instruments. In the same way, a C F Agent's functions consisting of seemingly unrelated tasks are well orchestrated. This view of ours is strengthened by various references including the Report of United Nations Economic Commission for Africa referred to by us in the preceding paragraphs all revealing in no uncertain terms that the freight forwarders are known variously as clearing agent, shipping forwarding agent etc. We are, therefore, of the view that even if one segment of activities is not demonstrated to be performed, it cannot be held that the appellants were not engaged in taxable service. Due to their orchestrated nature of work, such isolated activity can also be covered under C F Operations . Merely, because the bassoon was not played in one of the movements of a symphony, it does not cease to be otherwise a part of the orchestra. While forming this view, we have certainly not overlooked the fact that while music can be sometimes taxing, a tax can never be musical. 32. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t satisfy the requirement of clearing and forwarding. We, therefore, are of the view that the demand is not sustainable. To the same effect is our earlier decision in the case of M/s Mahavir Generics 15. The example of 'wheat and rice' grocery shop is obviously wholly mis-appropriate and does not fit in the context. We are also not in agreement with the interpretation of word 'and' which has already been dilated upon by us. 8. After considering the decisions cited by the assessee and on perusal of the records we find that the Revenue had not disputed the fact that the assessee cleared the converted goods on payment of central excise duty. It is claimed that the charges of the freight is included in the invoice value. Accordingly, we do not find any reason to interfere with the orders of the Commissioner (Appeals). The appeals filed by the Revenue are dismissed. Cross objection gets disposed off. 12. In as much the facts of the instant appeals and those involved and considered in the order dated 13.03.2018 of this Bench of the Tribunal are the same and involves the same parties, we are in agreement with the appellant s submission that the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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