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TMI Blog2022 (9) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant are with the same recipient and, therefore, is not clearing and forwarding agency service. The treatment of goods transport agency provided after 1st July 2012 continues to remain unchanged and the substitution of support service of business and commerce or of clearing and forwarding agent service with the omnibus service has not altered the delineation to offer any support to the finding in the two impugned orders - Appeal allowed. - Service Tax Appeal No. 87630 of 2016 and Service Tax Appeal No. 85895 of 2017 - FINAL ORDER No: A/85886-85887/2022 - Dated:- 16-9-2022 - Mr C J Mathew, Member (Technical) and Ajay Sharma, Member (Judicial) Shri Gajendra Jain, Advocate for the appellant Shri Shambhoo Nath, Principal Commissioner (AR) for the respondent ORDER Impugned before us are order-in-original no. 82/ST/COMMR/2015 dated 28th March 2016 and no. 29/ST/COMMR/2016 dated 20th December 2016 of Commissioner of Central Excise Customs, Aurangabad in which the appellant, M/s Auto Cars, has been subjected to detrimental consequences of late payment of tax to the extent of ₹ 1,34,37,061 by penalty imposed under section 76 of Finance Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by their customers and the value thereof was included in the same taxable service for discharge of liability till 31st May 2015 when the activity reverted at the pre- April 2007 scheme of goods transport agency service with no liability thereafter under Finance Act, 1994. 5. It was contended by him that the first of the impugned orders had, in contravention of section 73 of Finance Act, 1994, charged them with non-payment of ₹1,34,37,061 even as these dues had been discharged, though belatedly owing to financial hurdles by 18th March 2013 to the extent of ₹1,23,96,758 for the period from October 2012 to December 2012 and of ₹10,40,303 for the period from January 2013 to March 2013 and interest thereon deposited well before the show cause notice was issued to them on 21st July 2014. We find that this was not only explained but dues discharged in full with interest and that the impugned order revived the spectre merely for imposition of penalty, albeit at the curtailed rate, under section 76 of Finance Act, 1994. There was no requirement to appropriate dues discharged by self-assessment even if belatedly complied with. Consequently, that confirmation of demand, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive submits that the activities of the appellant herein have been established as conforming thereto. He drew attention to the description of their business in tax audit report and the nature of their activities, from the content of their website, as an accurate potrayal of the actual operations undertaken by them leaving no doubt that these comprise clearing and forwarding agent service. According to him, the details contained in the business support services agreement entered into with their customers elaborates upon the service rendered by them which, doubtlessly, extends beyond the primary transportation. He relied upon the statements of the lorry drivers to contend that the role of the appellants in the entire process of removal from the factory of the customers leaves no room for doubt that they are not mere transportation agents. 9. He further contends that, being a composite service with transportation of goods relegated to relative insignificance, the classification of the principal activity is the taxable head for the entirety and relied upon the decisions of the Tribunal in Larsen Toubro Ltd v. Commissioner of Central Excise, Chennai [2006 (3) STR 321 (Tri-LB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons who offer services in relation to clearing and forwarding operations as is commonly understood in the industry. 12. Learned Authorized Representative relied upon 11. From the reading of the definition contained in the aforesaid provision, together with its dictionary meanings contained in Legal and Commercial dictionaries, it becomes apparent that in order to qualify as a C F Agent, such a person is to be found to be engaged in providing any service connected with clearing and forwarding operations . Of course, once it is found that such a person is providing the services which are connected with the clearing and forwarding operations, then whether such services are provided directly or indirectly would be of no significance and such a person would be covered by the definition. Therefore, we have to see as to what would constitute clearing and forwarding operations. As is clear from the plain meaning of the aforesaid expression, it would cover those activities which pertain to clearing of the goods and thereafter forwarding those goods to a particular destination, at the instance and on the directions of the principal. In the context of these appeals, it would essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned before us has not been established. In re Larsen Toubro Ltd, the issue placed before the Larger Bench of the Tribunal was the relevance of directly or indirectly and in any manner in the definitions and it was held that 10. It appears to us that the expressions directly or indirectly and in any manner occurring in the definition of clearing and forwarding agent cannot be isolated from the activity of clearing and forwarding operations. A person may undertake to provide service of procurement of orders as agent of the principal without agreeing to provide services of clearing and forwarding of the goods. Clearing and forwarding has a very specific connotation in the context of movement of goods from the supplier to their destination and agents undertaking clearing and forwarding operations may never have been concerned with procurement of orders for the goods which are cleared and forwarded. A person entrusted with the work of commission agent for procuring orders for the principal cannot insist on also providing services as clearing and forwarding agent in respect of those goods and it would be open for the principal to engage some other person for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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