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TMI Blog2009 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... F Agent service for any previous period as the scope of C & F Agent service was not modified when BAS was introduced in the Act – demand is not sustainable. - S/15/03 - 647 OF 2009 - Dated:- 29-5-2009 - MS. JYOTI BALASUNDARAM, VICE PRESIDENT and P. KARTHIKEYAN, TECHNICAL MEMBER V.V. Hariharan for the Appellant. S. Ignatius for the Respondent. ORDER P. Karthikeyan, Technical Member.- This is an appeal filed by the revenue. Vide the impugned order, the Commissioner (Appeals) vacated two orders of the original authority confirming demands of service tax against M/s. Tamil Nadu Petroproducts Ltd. (TPL, respondents) towards service classifiable under the category 'Clearing and Forwarding Agents' availed from marketing agents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was performed by them. In confirming the demand he relied on the Tribunal's decision in the case of Prabbat Zarda Factory (India) Ltd v. CCE [2002] 145 ELT 222/[2007] 7 STT 226 (Kol.-CEGAT). In the impugned order, the Commissioner (Appeals) distinguished the instant case on facts from the case dealt with in the Prabhat Zarda Factory (India) Ltd.'s case (supra). The facts of the Prabhat Zarda Factory India Ltd.'s case (supra) were that the agents in that case actually marketed the goods in addition to booking orders. In the instant case, the respondents had full-fledged marketing department headed by a General Manager. There were sales executives of the respondents who met the customers and did liaison work. The respondents did not req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rketing agents were not involved either in the factory gate sales or in the respect of the depot sales. They were not involved in the transportation of the goods. As per clause 7 of the agreement dated 10-8-1999 between the respondents and M/s. Ahirami Associates, the possession of a warehouse/godown was an optional requirement. The respondents had not insisted on the marketing agents maintaining a godown. With effect from 1-7-2003, a new service called Business Auxiliary Service (BAS) was introduced by Notification No. 7/03-ST. dated 20-6-2003 which included in its coverage, 'promotion of marketing or sale of goods'. The impugned services were covered by BAS introduced with effect from 1-7-2003. Therefore, the impugned services availed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Toubro Ltd. v. CCE [2006] 4 STT 231 (New Delhi-CESTAT) examined the following question referred to it. "Whether mere procuring/booking orders for the principal by an agent on payment of commission basis would amount to providing services as 'clearing and forwarding agent within the meaning of the definition of the expression 'clearing and forwarding agent' under section 65(25) of the Finance Act, 1994, as held in the decision of the Tribunal in Prabhat Zarda Factory (India) Ltd v. CCE in 2002 (145) ELT 222 (Trib.)" (p.233) The Tribunal found that an agent engaged only for procuring purchase orders for the vendors on commission basis does not engage in any of the activities enumerated in the para 2.2 of Trade Notice 87/97 of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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