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TMI Blog2024 (3) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... sustain - the impugned order set aside - appeal allowed. - SHRI P. DINESHA, MEMBER (JUDICIAL) AND SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Ms. J. Vamini, Advocate for the Appellant Shri M. Selvakumar, AC (AR) for the Respondent ORDER These appeals arise out of the common Order in Appeal No.33/2014 dated 23.1.2014 passed by the Commissioner of Central Excise (Appeals), Salem. 2. The case of the Revenue, which is also undisputed by the appellant, are that the appellant is engaged in the purchase of raw silk from Anna Silk Exchange , Kancheepuram which is the silk market run by the Sericulture Department for raw silk in the State of Tamil Nadu. Their function is to test the quality of silk received from the reelers and stock it for being sold in open auction to various agencies like the appellant, Handloom Silk Weavers Cooperative Societies and Twisters. The raw silk so procured by the appellant would be sold to B-Class Members (twisters) for further processing i.e. twisting, after doing so, the twisters would bring back the twisted silk i.e. ready silk for the purposes of sale. 2.1 It thus appeared to the Revenue upon investigation that the appellant had received / collected commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strative cost and the appellant would discharge market / Government levy at 0.75% on cost of silk by remitting to the Government of Tamil Nadu account, The appellant cannot therefore be considered as clearing and forwarding agents since the appellant and the members are one and the same and there is no service provider- client relationship, The appellant is only providing a platform for effecting sale of the goods belonging to their registered members and the sale is based on the approved price fixed by the pricing committee. In support, learned Advocate relied on the following decisions:- (a) CCE, Salem Vs. Salem Starch MFR s Service Indl. Co-Op. Society Ltd. 2014 (33) STR 16 (Mad.) (b) CCE, Panchkula Vs. Kulcip Medicines (P) Ltd. 2009 (14) STR 608 (P H) affirmed by the Hon'ble Supreme Court as reported in 2012 (25) STR J127 (SC) (c) Salem Starch Manufacturers Service Industrial Co-Op Society Ltd. Vs. CCE, Salem 2006 (1) STR 106 (d) CCE Vs. Bhuwalka Steel Industries 2015 (2) STT 138 (Chennai) (e) State of West Bengal Vs. Calcutta Club Ltd. 2019 (29) GSTL 545 (SC) 5. Per contra, the learned Assistant Commissioner relied on the findings of the original authority as well as the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the directions of the Principal, no evidence was let in by them to substantiate this aspect. The Assessing Officer viewed that transport could be arranged either by the Principal or by the assessee and as far as the present case is concerned, it was totally immaterial, since, the sale was effected by the assessee only after obtaining the concurrence of the Principal. This action was nothing but arranging dispatch of goods on the instruction of the Principal; consequently, the activities undertaken by the assessee was connected with or in relation to sale of sago. The Assessing Officer further found that apart from maintaining details as regards the receipt of goods and the dispatch, the invoices were prepared by the assessee. Going by the nature of activity, it was clear that the assessee was required to be assessed as clearing and forwarding agents. The Assessing Officer further pointed out that the assessee had paid the Service Tax under storage and warehousing, with effect from 16-8-2002. Thus, considering the status to be assigned to the assessee herein as a clearing and forwarding agent, the Assessing Officer adjusted this payment towards the liability fastened on the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e brought to its door steps by its Principal and displaying the goods received for sale, practically, nothing else was done by the assessee in the matter of taking the goods from the Principal and for further despatching of the goods to the buyer by engaging transporter or on its own transporter. The conduct of the assessee, handling the goods on receipt raising invoices on sale or maintaining of the records as to the stock availability, at best, showed it only as an agency offering storage facility. This act, per se, does not convert the assessee s transaction as that of a clearing and forwarding agency. Thus, when the burden is on the Revenue to prove that the assessee, in fact, received the goods from the premises of the Principal and arranged despatch of goods as per the directions of the Principal by engaging transporter on its own or through various transporters, we have no hesitation in accepting the submission of the assessee that the nature of transactions viz., despatching of goods and offering storage facilities by the assessee, does not fit in with the criteria given in the circular to treat the assessee as a clearing and forwarding agent. As pointed out by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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