2008 (11) TMI 145

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..... of M/s. Raymond Ltd. In this connection, he drew the attention of the Bench to selling agency agreement between the appellant and M/s. Raymond Ltd. He submits that the appellant procured the orders from the dealers and getting the commission thereon. He also submits that during investigation they have clarified the nature of services undertaken by them vide their letter dated 14-2-04 addressed to the Deputy Commissioner of Central Excise. He also submits that the adjudicating authority passed the order relying upon the decision of the Tribunal in the case of Prabhat Zarda Factory (India) Ltd. v. CCE, Patna [2006 (2) S.T.R. 584 (T) = 2002 (145) E.L.T. 222 (Tri.)], which has been overruled by the Larger Bench of the Tribunal in the case of L .....

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..... le or purchase of such goods or services. This clearly shows that the activity of mere procurement of purchase orders for the principal on commission basis of a commission agent is treated separately by the Parliament from the activities of a clearing and forwarding agent. Activity of procuring orders is thus independent of clearing and forwarding operations. The agents doing these activities can be different. Moreover, clearing and forwarding operations do not flow directly or indirectly from mere procurement of orders. There is no obligation on the person procuring orders as a commission agent for the principal, only by virtue of that agency, to carry out clearing and forwarding operations in respect of the goods which are to be supplied .....

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..... ices on behalf of Ramond Ltd. Since the same is done directly by Ramond Ltd. 5. Jitendra Nath & Sons has also not handled or sold any goods on consignment basis for Raymond Ltd. or for any other manufacturer." 5. We find that the adjudicating authority passed the order following the decision of the Tribunal in the case of Prabhat Zarda Factory (supra). Commissioner (Appeals) proceeded on the basis of various clauses of the agreement and it was interpreted that the appellants are not only engaged merely for procurement of orders on commission basis and they are clearing and forwarding agents. We are unable to agree with the findings of the Commissioner (Appeals). We find that the appellant had written a letter to the Deputy Commissioner st .....

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