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Finance Bill, 2014 enacted into Finance Act, 2014, Date of Enactment 06.08.2014Budget 2014-15 : Sale of space for advertising has been made taxable except for print media.Budget 2014-15 : Radio Taxis are now taxable.Budget 2014-15 : Education : The definition of Auxiliary Education Services has been scraped.Budget 2014-15 : Works Contract : 2 slab rates prescribed in place of earlier 3 slabs.Budget 2014-15 : E-payment of Service tax is being made mandatory with effect from 01.10.2014.Budget 2014-15 : POPS: Definition of intermediary is being amended to include the intermediary of goods in its scope.
Landmark Service Tax Judgment - Clearing and Forwarding Agent Services

Taxable Services - Clearing and Forwarding Agent Services

Case Laws Related

  • STO 2013 CESTAT 1551
  • Service Tax: Clearing and Forwarding Agents: Scope and liability: The appellants were receiving goods from various sources, warehousing the goods, receiving orders and based upon the orders the goods were being packed for outbound transportation. Therefore, the activities carried out by the appellants are covered within the definition of "Clearing and Forwarding Agent” service. The fact that the warehouse or the place of activity is owned or provided by M/s. Ford India Ltd., the fact that certain computers and softwares have been provided by Ford India Ltd., similarly, the fact that the transports are arranged by Ford India Ltd. will not make any difference. The service is broadly receiving the goods, warehousing these goods, receiving dispatch orders from Ford India Ltd., arranging dispatch of goods, maintaining records of the incoming shipments and deliveries. Hence the service provided by the appellant is Clearing and Forwarding Agents Services. Since the amount collected is for various components of services, amount collected cannot be considered as including service tax and hence benefit of cum duty cannot be extended in terms of Section 67 (2) of the Finance Act, 1994. (Para 4.3, 4.7).

    Appeal dismissed.

  • STO 2013 CESTAT 986
  • Clearing & Forwarding Agent: Appellants never sold any goods of TISCO but only handled the goods: Activities of appellant have been classified Clearing & Forwarding Agent Service in appellant's own case by thisTribunal vide order dated 29.05.2008 reported in STO 2008 CESTAT 884. Therefore following the said decision the appellants are chargeable to service tax for their activities under Clearing & Forwarding Agent Service.

  • STO 2013 CESTAT 785
  • Clearing & Forwarding Agent: Commission Agent included in this category: Agreements show that the respondents were commission agents: Facts identical to Mahavir Generics decided by Honorable Karnataka High Court: Appeal of Revenue allowed.

  • STO 2013 CESTAT 1011
  • Clearing and Forwarding Agency Service: Custom House Agent : Both services different: Appellant is a recipient of the service: During the impugned period prior to the amendment of Section 73 vide Finance Act, 2004, there was no provision in law for demand of Service Tax from assessees who were required to file return under Section 71A.

  • STO 2013 CESTAT 889
  • C&F Agent: Issue involved in the present case relates to inclusion or otherwise of reimbursable expenses claimed to be towards, godown rent and loading and un-loading charges, in the gross taxable value received by the applicant while discharging services of clearing and forwarding agents: directions issued for partial pre deposit.

  • STO 2013 CESTAT 559
  • Clearing & Forwarding Activity: Appellants carrying out the activity of booking cargo: not covered under C&F.

  • STO 2013 CESTAT 467
  • C & F Agent Service or Storage & Warehouse Service: Storage facility is inseparable part of C&F Agent service: Service classifiable under C&F Agent: Limitation: For the first time the Revenue wrote a letter dated 27.9.2002 asking assessee to pay tax for the period Sept. 2001 to July 2002. Assessee replied this letter vide their letter dated 8.11.2002 thereafter there was correspondence on 20.11.2002 from the department and replied by assessee on 9.12.2002. Fact that assessee is not paying duty on cold storage charges was known to department in 2002. Quantum of Cold Storage Charges is already part of agreement and is fixed on monthly basis. Extended period based on suppression of fact cannot be invoked in the present case and therefore demand beyond period of one year is time barred in the present case. 

  • STO 2013 CESTAT 448
  • Business Auxiliary Service: Clearing & Forwarding Agent: No reasons given in the Order for classifying the service under a particular category: Matter remanded.
     

  • STO 2013 CESTAT 341
  • Clearing & Forwarding Agent: Appellant are not involved in clearing operations at all, they only provide labour for unloading of the cement at the rail heads, loading into the trucks for transportation to the storage godown of M/s Binani Cement and thereafter unloading at the godown and its stacking and thereafter arranging the dispatch of the cement as per the directions of M/s Binani Cement, they also maintained a record of the receipt and dispatch: The activity of the appellant is only of forwarding and not clearing and forwarding.

  • STO 2013 CESTAT 412
  • Business Auxiliary Service: C&F Agent service: Respondents are marketing agents and the duties included circulation of product information brochures, collection of data from the market, receiving deposits/payments from the customers and launching marketing schemes to push the sales of the principal. There was no physical receipt of storage or forwarding of the goods to the customers by the marketing agents: Respondent did not perform the functions of clearing & forwarding of goods and the activity undertaken by them are classifiable under 'Business Auxiliary Service' and not under C&F Agents Service: Departmental appeal dismissed.

  • STO 2013 CESTAT 350
  • Clearing & Forwarding Agent Service: Persons engaged in mere procurement of orders on commission basis are not covered under clearing and forwarding agent service.

  • STO 2013 CESTAT 248
  • C&F Agent: Value addition of loading & unloading charges: Respondents as C&F agent getting a fixed amount on which service tax has been paid. Loading and unloading is arranged on behalf of the company and the respondents were not retaining any amount in respect of loading and unloading: Charges of transportation not includible.

  • STO 2013 CESTAT 258
  • C&F Agent: Penalty: Appellants were doing only trading and only on two occasions they had undertaken activity of C&F Agent: Penalties set aside.

  • STO 2013 CESTAT 386
  • Clearing & Forwarding Agent: Any person who is engaged in providing any service, either directly or indirectly connected with clearing and forwarding operations in any manner to any other person and includes a consignment agent: No evidence about any such activity being done by the respondents: Not covered.

  • STO 2013 CESTAT 385
  • Clearing & Forwarding Agent: Period 16.7.1999 to 31.8.1999: Class of persons who came under Section 71A is not brought under the net of Section 73 of the Finance Act. In these circumstances, the Hon'ble Supreme Court held that the show cause notice issued to the assessee invoking Section 73 of the Finance Act is not maintainable.

  • STO 2013 CESTAT 261
  • Clearing & Forwarding: From the terms and conditions specified therein, the activities of the appellant start from receiving the goods supplied by Cipla, warehousing the same and dispatching as per the instructions given by Cipla. The appellant does not undertake any clearing functions from the premises of Cipla. Thus the activity of the appellant is a forwarding activity: As per judgment of P&H High Court in Kulcip Medicines clearing and forwarding, both the activities should be done in order the service to be covered under C&F Agent: Demand dropped.

  • STO 2013 CESTAT 308
  • Clearing & Forwarding Agent: Commission Agent: Appellants claiming that they were commission agent for tea which is agricultural product, hence, service tax levy exempted under Notification No. 13/2003: Matter not considered by the department: Remanded.

  • STO 2013 CESTAT 303
  • Clearing & Forwarding: Business Auxiliary Service: Activities undertaken by the appellant are freight forwarding, collection of freight charges and remitting the same to the foreign principal. The said activity of freight forwarding does not come within the category of "Clearing & Forwarding Agency Services".

  • STO 2013 CESTAT 198
  • "Clearing & Forwarding Agents": activity of "Del Credere Agent" was brought under the service tax net with effect from 16/06/2005 under the category of "Business Auxiliary Service": Activity not taxable prior to 16/06/2005.

  • STO 2013 CESTAT 573
  • Business Auxiliary Service: Clearing & Forwarding Agent Service: Demand: Stay: Applicants not able to explain the meaning of term “Provision” on which they did not pay service tax for the period prior to 09.07.2004: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 271
  • Demand: Stay: Clearing & Forwarding Agency: GTA Service: Directions issued for partial pre deposit.

  • STO 2012 CESTAT 1047
  • Banking & Other Financial Services: Business Auxiliary Service: Transfer of money from foreign nations to India: Western Union is getting their payment from the person remitting money abroad and hence obviously the services rendered by PML is ultimately used by the person remitting the money from abroad. Impugned service is used outside India and would qualify as export of services as per conditions laid down in Rule 3 (1) (iii) of Export of Services Rules, 2005: service was classifiable as Business Auxiliary Service prior to 01-05-2006 and as Banking and Financial Service from 01-05-2006.

  • STO 2012 CESTAT 1069
  • C&F Agent: Selling agent: Appellant are engaged in the activity of marketing and selling of the products manufactured by their principal by procuring purchase orders for their principal. Goods are being dispatched by their principal directly to their customers and for introducing the customers to their principal-manufacturer they were getting commission: Activity not covered under the category of 'Clearing and Forwarding Agents Service' during the impugned period, 2000 to 2003.

  • STO 2012 CESTAT 880
  • C&F Agent: Penalty: Reimbursement amount of service tax by service receiver excluded while discharging service tax under the bonafide belief: This amount reflected in returns under exempted value column: Penalty waived by invoking Section 80.

  • STO 2012 CESTAT 836
  • Clearing & Forwarding Agent: Activities of respondents being of selling the goods on behalf of principal and not merely acting as agent: Not covered under C&F Agent category.

  • STO 2012 CESTAT 691
  • Clearing & Forwarding Agency: Based on identical issue decided in favour of the same assessee for earlier period: Demand in the present case also set aside for the period 01.04.2009 to 31.03.2010. 

  • STO 2012 CESTAT 369
  • C&F Service: Non payment of differential amount attributed to trading activity without evidence: Partial pre deposit ordered.

  • STO 2012 CESTAT 253
  • C&F Agent: Loading & Unloading of goods not enough to consider the services of appellants as that of C&F Agent, they were not issuing invoices on behalf of the Company and had raised bills only for loading/unloading of goods : Stay granted.

  • STO 2012 CESTAT 147
  • C&F Agency: Reimbursable expenses: Stay: It is well settled law that when there are two views holding the pleas and the law stands subsequently declared by the Larger Bench, assessee cannot be attributed with any malafide intent or suppression or misstatement of facts: Stay granted.

  • STO 2012 CESTAT 402
  • Clearing & Forwarding Agent: Reimbursement of expenses: The concept of reimbursement will arise only when the person actually paying was under no obligation to pay the amount and he pays the amount on behalf of the buyer of the goods and recovers the said amount from the buyer goods.

  • STO 2012 CESTAT 180
  • C&F Agent Service: Mere booking of orders for the principal by an agent on commission basis is not covered under C & F agent services.

  • STO 2012 CESTAT 46
  • Clearing & Forwarding Agent: Appellants appointed foreign agents for clearing the consignments exported by them and delivering to the consignees: Since entire service provided outside India, service tax not leviable: Prima facie for waiver made out.

  • STO 2012 CESTAT 268
  • C&F Agent Service: Demand : Stay: Good case being made out on limitation on the ground of bonafide belief by various judicial pronouncements holding contradictory about inclusion of reimbursable expenses in the taxable value: Partial stay granted.

  • STO 2011 CESTAT 316
  • Reimbursible expenses: Clearing & Forwarding Services: Expenses being directly connected with the service admissible.

  • STO 2011 CESTAT 146
  • Clearing & Forwarding Agent: Various expenses incurred being reimbursed to them on actual basis: Matter remanded back for examination of various aspects.

  • STO 2011 CESTAT 337
  • Service Tax: C & F Agent's service: Classification: The intention of the contracting parties in the instance case, as reflected in the recitals of the agreement, was that the appellant should provide handling, clearing and forwarding services to Cipla in respect of the pharmaceutical products of the latter. The relevant provisions of the agreement, clearly indicate that the appellant was appointed by Cipla as their agent to provide clearing and forwarding services to them. On these facts, the orders of the lower authorities directing the appellant to maintain their registration as C & F Agent for the material period have to be sustained. It is ordered accordingly.(Para 7). In the result, the appeal stands dismissed.(Para 9). 

  • STO 2011 CESTAT 330
  • Service Tax: Clearing and Forwarding Agent Services: Valuation: Reimbursement of Expenses: Reference to Larger Bench : Different benches are taking different views on includibility or otherwise of the reimbursement charges received by a provider of taxable service in the calculation of gross amount for discharge of service tax. Since there are two views taken by the coordinate benches, the matter is referred to the Hon'ble President to constitute a larger bench and settle the issue of "includibility or otherwise of the reimbursement charges". (para 7,8)

  • STO 2011 CESTAT 278
  • Franchisee Service: whether the appellant is liable to discharge service tax liability on an amount of 25% retained by them out of the course fee paid by the student for the purpose getting a degree of "CMC Modular DAST Course".: Taxable: Penalties set aside.

  • STO 2011 CESTAT 301
  • Service Tax: Cross objection: Appeal: The decision of the Tribunal was overruled by the Hon'ble Karnataka High Court. Since the Commissioner (Appeals) and the original authority decided issue in favour of the respondents relying on the said decision of the Tribunal and no other issues were discussed, it is appropriate to accede to request of the department for de novo consideration by the original authority.(Para 6.2).The appeal is allowed by way of remand. Cross objection is also disposed of.(Para 6.4). 

  • STO 2011 CESTAT 351
  • C&F Agent : Appellants appointed as Del Credere and not as C&F agents. No terms and conditions in MOU requiring the respondents to take the activity of loading/unloading, storing or to deal with the goods in any other manner. Not taxable

  • STO 2011 CESTAT 265
  • Clearing & Forwarding Agent: Financing coal merchants is not an activity covered under this service, hence, not taxable.

  • STO 2011 CESTAT 171
  • Service Tax: Clearing and Forwarding (C & F) service: Demand: As per the Board's Circular, the C & F agent generally undertakes six activities. The appellants are not receiving the goods from the factories or premises of the manufacturers, rather in the present case, the manufacturers of coir products are supplying the goods to various stores of the appellants. The appellants are identifying the buyers and not receiving the dispatch orders from the manufacturers nor raising any despatch order of the goods as per directions of the manufacturers. Invoices are prepared in the name of Coir Board itself at the time of sale of the goods and not in the name of manufacturers. In view of these facts, the appellants are not acting on behalf of the manufacturers for selling of the goods, rather the appellants are purchasing the goods from the manufacturers and selling the same to the buyers who visit the showroom. Therefore there is merit in the contention of the appellants. The impugned order is set aside and the appeal is allowed.(Para 7).

  • STO 2011 CESTAT 103
  • Service Tax: Clearing & Forwarding (C & F) Agents : Valuation of taxable service : Since the claim of the learned Chartered Accountant is that they will be able to produce the evidence that the amounts which were not included in the gross amounts for discharge of service tax were reimbursed amount, the assessee may produce evidences to substantiate the same before the lower authorities. In view of this without expressing any opinion on merits of the case, keeping all the issues open, the impugned order is set aside and remand the matter to the adjudicating authority to reconsider the issue afresh. The appeals are allowed by way of remand to the adjudicating authority.(Para 6). 

  • STO 2011 CESTAT 234
  • Service Tax: Clearing and Forwarding Agent Services: Valuation:  Reimbursement of Expenses: Reference to Larger Bench: Different benches are taking different views on includibility or otherwise of the reimbursement charges received by a provider of taxable service in the calculation of gross amount for discharge of service tax. Since there are two views taken by the coordinate benches, the matter is referred to the Hon'ble President to constitute a larger bench and settle the issue of "includibility or otherwise of the reimbursement charges". (para 7,8)

  • STO 2010 CESTAT 657
  • Service Tax: Clearing & Forwarding Agent Service: The issue as to whether Del Credere agent is a Clearing and Forwarding agent stands settled against the Revenue by a recent decision of the Hon’ble Karnataka High Court in Commissioner of Service Tax, Bangalore Vs. Sreenidbi Polymers (P) Ltd. The High Court has that the assessee, who is a Del Creder agent, is a mere surety and liable to principal only when the purchaser defaults, and is not liable to service tax as a Clearing and Forwarding agent. Following the ration of the above decision, uphold the impugned order and reject the appeal. (para 2).

  • STO 2010 CESTAT 728
  • Service Tax: C&F Agent: Valuation: Value to include the expenses reimbursed by service receiver, as the appellants failed to prove that they acted only as “pure agent”.

  • STO 2010 CESTAT 382
  • Reference to Larger Bench: Once the referral Bench had arrived at the finding that none of the decisions which were sought to be relied upon discloses the reasons for arriving at the conclusion, arrived at in those decisions, it was open to the Division Bench to decide the matter by considering the merits of the case and the law applicable to the facts of the case. In the absence of any law having been laid down in any of those decision, the referral Bench was free to taken the correct view in the matter in accordance with the provisions of law. Merely because the referral Bench found prima facie that the decisions taken by the earlier Bench could not be relied upon, that itself cannot be a ground for referring the matter to the Larger Bench.

  • STO 2010 CESTAT 221
  • Clearing & Forwarding Service: Limitation: As per Board’s Circular there was confusion over inclusion of reimbursable charges: Prima facie case made out: Stay granted.

  • STO 2010 CESTAT 179
  • Service Tax: Cleaning Service: Pre-deposit: As the applicants are only removing fly ash from the ash pond to the other area, therefore prima facie it is not covering under the cleaning service therefore pre-deposit of service tax and penalties are waived and recovery of the same is stayed during pendency of the appeal. Stay petition is allowed. (para 6)

  • STO 2010 CESTAT 289
  • Service Tax: Clearing & Forwarding Agents Service: Pre-deposit: The Bench vide Final Order dt. 29/4/2008 clearly held that the services provided by M/s. Cairn Energy Ltd. Pvt. Ltd. would not fall under the category of C&F agent service. If that be so, the appellant having allegedly received the services, as recipient of the services, would not also to be covered under the category of C&F agent service as the services rendered by M/s. Cairn Energy (I) Pvt. Ltd. are not considered as C&F agent service. In view of the above, applicant has made out a prima-facie case for waiver of pre-deposit of the amounts involved. (para 4)

  • STO 2010 CESTAT 147
  • Service Tax: Clearing & Forwarding (C & F) services: Pre-deposit: The agreement which is subject matter of appeal pending before the Mumbai Bench and in respect of present dispute are containing same terms and conditions. Part of the demand of service tax which is the subject matter of appeal which is pending before Mumbai Bench of the Tribunal and in the present proceeding is again confirmed. Pre deposit of amounts of service tax, interest art penalties are waived for hearing of the appeal and recovery of the total waiver of pre deposit of amounts of service tax, interest and the (para 4)

  • STO 2010 CESTAT 84
  • Service Tax: C & F Agents: The assessee were only procuring orders for customers and goods were being supplied directly to customers and they were paid brokerage which does not fall within the purview of services by a C&F Agent. Mere booking of orders for the principal by an agent on a commission basis is not taxable under C&F Agent service. The demand and penalty set aside and appeal allowed. (para 2)

  • STO 2009 CESTAT 1537
  • Service Tax: Clearing and Forwarding agent services and franchisee services: Liability on amounts reimbursed by the Principal: The department has demanded service tax on the ground that the amounts reimbursed by the Principal towards various expenses such as telephone charges, electricity charges, transportation charges, salary etc are liable to service tax. There are series of decisions of the Tribunal holding that such expenses which are reimbursed are not entitled for the purpose of levy of service tax viz. in the case of Amit Sales reported in STO 2008 CESTAT 511, the matter was referred to the Larger Bench but unconditional stay was granted.

    Liability on incentives received on target sale : Another amount has been demanded on the ground that appellants are liable to pay service tax on the incentive amount received from M/s. Tata Chemicals Limited as they are acting as distributor. The appellant is purchasing Tata Salt and selling the same to the customers as distributors and for achieving certain targets, M/s. Tata Chemicals had given incentive. The department has taken a stand that such inventive received by the appellant is to be treated as remuneration for business auxiliary services and to be charged to Service Tax which is not correct and actually the incentive is paid for selling certain quantities and not sales promotion.

    Franchisee services: Scope: An amount has been demanded towards service tax on the ground that appellants is liable to pay service for franchise service being the franchisee of AFL Private Limited. As per the definition of franchisee services, the service provider should be franchisor and not the franchisee and therefore, the service tax demand is not sustainable.(Para 2,4).

    Stay granted.

  • STO 2009 CESTAT 1567
  • Service Tax: Clearing and forwarding agency service: Scope and liability: Remand: Appellants are mainly engaged in the business of logistics and they facilitate clearance of export/import/cargo, facilitate other requirements such as fumigation etc. in respect of such cargo and also arrange ocean freight appears correct to us. The department has taken a stand that such services are covered by the definition of clearing and forwarding agency service. However, the circular issued by the Board and the decision of the Hon'ble Punjab & Haryana High Court in the case of Kulcip Medicines (P) Ltd. Vs. CCE, Panchkula reported in STO 2009 P&H 1615 support their case that their service cannot be classified under the category of clearing and forwarding agency service. To be fair when the Commissioner passed the impugned order, the decision of the Hon'ble High Court of Punjab & Haryana which overruled the decision of Larger Bench of the Tribunal in Med Pro Pharma Pvt. Ltd. STO 2006 CESTAT 74 case was not available. Substantial portion of the total amount collected by the appellants relates to ocean freight which itself is not liable to service tax at all. The decision of the Tribunal in the case of DHL Lemuir Logistics Pvt. Ltd. Vs. CST, Bangalore reported in 2009 (22) STT 398 (BANG. - CESTAT) relating to air freight is applicable to the facts of this case also and therefore the decision of the Commissioner that ocean freight also should be included for the purpose of service tax levy on the appellants prima-facie appears to be wrong. Having regard to the nature of service provided by the appellants and also the decision of the Hon'ble High Court of Punjab & Haryana, Board's instructions and decision of the Tribunal - Bangalore Bench, the appellants have made a strong prima-facie in their favour. In view of the fact that there is a clear decision that freight element cannot be included for service tax, substantial portion of the demand does not appear to be sustainable. In view of the fact that the decision of the Hon'ble High Court of Punjab & Haryana was not available to the Commissioner when the impugned order was passed and also the decision of the Bangalore Bench cited above was also not available to him, it is appropriate to set aside the impugned order and remand matter for reconsideration(Para 4).

    Matter remanded.

  • STO 2009 CESTAT 1532
  • Service Tax: clearing and forwarding’ service: Scope and liability: There is no dispute that the goods are cleared by the principals to the assessees. In other words, the assessee do not undertake clearance of goods from their principals but the goods are supplied by their principals to them. In this view of the matter, the decision of the Hon'ble Punjab & Haryana High court in Commissioner of Central Excise, Panchkula Vs Kulcip Medicines (P) Ltd. STO 2009 P&H 1615 holding that if the goods are already cleared by the principal, the recipient who receives the goods, stores them and sells them cannot be held to be a ‘clearing and forwarding agent’ so as to be liable to service tax under this category.(Para 2).

    Appeal allowed.

  • STO 2009 CESTAT 1437
  • Service tax: Taxable value: Inclusion of transport charges in the gross value for the liability to Service Tax under the head of C&F agent: Scope: Appellant is having separate contracts, one for C&F and one for transport charges. The ld. Commissioner has not given any findings on the evidences submitted by the appellant before him as regards the separate bills raised for transportation charges in pursuance to the contract entered for transporting of the goods, This is a vital factor, which needs to be gone into by the Commissioner as the Revisionary Authority, since there are two separate contracts, both cannot be considered for arriving at taxable value. Matter remanded to the ld. Commissioner(Para 6).

    Appeal allowed by way of remand.

  • STO 2009 CESTAT 1390
  • Service Tax: Clearing & Forwarding Service: Whether reimbursable expenses are to be included in the value of taxable service: The issue is no longer res integra as it stands settled in favour of the assessees by the Tribunal's decision in their own case reported in STO 2007 CESTAT 455 holding that charges reimbursed to the assessees by their principals are not includible in the value of taxable service. (Para 1).

    Revenue appeal rejected.

  • STO 2009 CESTAT 1393
  • Service Tax: C and F services: Scope and liability: The assessees receive products already cleared by the manufacturer and do not undertake any clearance themselves. Therefore, the ratio of the decision of the Hon'ble Punjab & Haryana High Court in Commissioner of C.Ex, Panchkula Vs Kulcip Medicines (P) Ltd. [STO 2009 P&H 1615] holding that if goods are already cleared by the manufacturer and received by a dealer who, in turn, forwards the goods to buyers, the dealer cannot be held to be a C&F agent rendering C&F Agent service so as to make him liable to levy of service tax, applies squarely to the present case.

    Revenue appeal dismissed.

  • STO 2009 CESTAT 1177
  • Service Tax: Clearing and Forwarding Agent: Period of limitation: The Revenue is not disputing that the appellant approached to the department in 2004 but submits that the period is prior to the said intimation, during which there was no correspondence between the respondents and the Revenue. However, it is seen that even after the respondents approached department in 2004, they were not advised to pay tax and show cause notice was issued on 02.9.2005. Department itself was not clear and that is the reason that their request for clarification made in 2004 was not replied to. In such a case, demand having been raised beyond the normal period of limitation is barred by limitation(Para 2).

    Revenue appeal rejected.
     

  • STO 2009 CESTAT 1362
  • Service Tax: Clearing & Forwarding services: Scope: From the Appellant's agreement with BPCL, it will be seen that – (a) the Appellants are not involved at all the clearance of the goods from BPCL's factories godown; and (b) the Appellant's activity is receiving the lubricants dispatched by BPCL at the godown at A-61, Subhash Nagar, Bhilwara, arranging its safe storage and sale on behalf of BPCL at the BPCL's prices and conditions and the remuneration being received by the Appellant from BPCL is dependant upon achieving certain minimum sale volume. The point of dispute is as to whether the above activity of the Appellant is covered by Section 65(105)(j) read with Section 65(25) of the Finance Act,1994.(Para 5).

    Scope and liability: From the circulars of the Board viz. Trade Notice No.87/97/10/Service Tax/97 dt.14.7.97 of Madurai-II Commissionerate and Board 's Circular No.2/1/02-ST dt.24.4.02, issued under Section 37B, Circular No.59/8/03-ST dt.20.6.03 regarding the 'C&F Agent's service, it is clear that the C&F Agent's services involve movement of the goods from the Principal's factory or warehouse as per the Principal's directions, in which the warehousing of the goods or issue of invoices on behalf of the Principal are only incidental activities. A Larger Bench of the Tribunal in the case of L&T Ltd. vs CCE, Chennai reported in STO 2006 CESTAT 66 observing that 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, has held that mere procuring or booking orders for the principals by an agent on payment of commission basis would not amount to providing "C&F Agents' service" within the meaning of definition of this expression on Section 65(25) of the Finance Act,1994. Appellants are neither involved in clearing activity nor in forwarding activity. They only arrange for receipt, storage and sale of the lubricants on behalf of their principals and hence it is erroneous to treat them as clearing and forwarding agents. The judgment of Tribunal in case of CCE, Jaipur vs Chopra Brothers reported in STO 2005 CESTAT 261 cited by the Learned DR is a single member bench judgment and prior to the Larger Benches order in case of L&T Ltd. vs CCE, Chennai(Supra). Tribunal in case of CCE, Allahabad vs Chandan Chemical reported in STO 2007 CESTAT 96 has held that the Respondent's activity of receipt, storage and sale of goods for which they receive a commission is not covered by the definition of C&F Agent's service. (Para 6.3,7).

    Appeal allowed.

  • STO 2009 CESTAT 1028
  • Service Tax: Clearing & Forwarding cum Re-packing agent of M/s Tata Chemicals (TCL) for the product Common Salt and Soda Ash manufactured by TCL, for the period August 2002 to November 2006: Scope and liability: The appellants have not been able to make any strong case in their favour. Revenue has a case as regards repacking activity of the appellant. Further, a C&F agent is invariably required to maintain a ware house also since he has to clear the goods from the principal and forward in to the customer. Therefore, collection of separate warehousing charges does not appear to be correct and other appellants have to pay service tax towards warehousing charges separately or as part of C&F agency. Similarly, loading/unloading also is a part of C&F agent service and therefore, prima facie, it appears that the appellants would be liable to pay tax separately if they charge for these services separately since they cannot be called as reimbursable expenses. However, it has to be agreed that issue is arguable one and requires to be considered in detail(Para 2,3).

    Pre-deposit ordered.

  • STO 2009 CESTAT 810
  • Service Tax: Clearing and Forwarding Agents for the period 2001-02 to 2005-06: Period of limitation: Law during the relevant period was interpreted by the Tribunal in favour of the assessee laying down that consignment agents cannot be held liable to tax under the category of clearing and forwarding operations. For the above proposition, Tribunal decision in the case of Mahavir Generics vs. CCE, Bangalore STO 2004 CESTAT 77 are relied upon. The said decision is overruled by the Larger Bench decision, in the case of Medpro Pharma Pvt. Ltd. vs. CCE, Chennai STO 2006 CESTAT 74. As such, when there are contradictory decisions holdings the field, assessee cannot be held guilty of suppression or misstatement and the demand of duty beyond the normal period of limitation is not justified. Accordingly, the impugned order is set aside and remand the matter to lower authorities for re-quantification of duty. On the same ground, penalty under Section 78 is also set aside by invoking the provisions of section 80.(Para 1,2).

    Appeal disposed off.

  • STO 2009 CESTAT 825
  • Service Tax: Clearing and forwarding service: Scope and liability: Commissioner (Appeals) has made a finding that the goods are received from the principal by the appellant and those goods are also delivered to serve interest of principal itself. There are several orders passed by the Tribunal beginning from Larson & Turbo case to hold that above activity is clearing and forwarding service. Judgement of this Tribunal in the case of Naresh Kumar & Co. Pvt. Ltd. Vs. CST, Kolkata reported in STO 2008 CESTAT 884 where there was a detailed analysis of C&F Services done. Tribunal had also occasion to examine the case of Karam Chand Thappar v/s. Commissioner of Service Tax, Kolkata and noted the characteristics of agreement which is decisive to decide liability. A bare perusal of the relation of the principal and agent read with the CBEC Circular No. B/43/7/97-TRU dated 11.07.97 brings the very nature of activity of the present appellant to the scope of the law under the category of Clearing & Forwarding Agency. The appellant has no case to succeed. (Para 3).

    Appeal dismissed.

  • STO 2009 CESTAT 843
  • Service Tax: Remand: Appellants are rendering services in the category of "Club or Association'. Consequently, Service Tax has been demanded. However, the amount on which Service Tax has been demanded includes certain refundable deposits if that is taken into account, their liability would be suitably reduced. Since this factual information has to be verified only at the stage at Original Authority, matter remanded back to the Original Authority for examining the issue(Para 2).

    Matter remanded.

  • STO 2009 CESTAT 736
  • Clearing and Forwarding Agents : Principal Vs. Agents : The real nature of the transactions between them and their principals requires to be deciphered not only from the text of the agreements but also from other documents like debit notes associated therewith. In this view of the matter, the genuineness of the appellants' claim of not having physically dealt with the goods in the course of rendering assistance to their principals is in serious doubt. Pre-deposit Order.

  • STO 2009 CESTAT 424
  • Commission Agent v/s C & F Agents: The clarification issued by the CBEC is to the effect that selling of the goods of the principal as an agent was the job of a “Commission Agent”. The activity of a Commission Agent is appropriately covered under BAS introduced on 9.7.2004, the same activity could not be taxed under a pre-existing category for an earlier period.

  • STO 2009 CESTAT 548
  • Service Tax: Clearing and forwarding agent: Activity of despatch of the coal: Scope and liability: It is noticed from letter of Delhi Vidyut Board that the applicant shall be appointed as coal agent/consultant for supervision of coal loading at the colliery end and for dispatch to two power stations. Prima facie, it appears that the activities undertaken by the applicant are under the category of clearing and forwarding agent.(Para 3).

    Pre-deposit ordered.

  • STO 2009 CESTAT 428
  • Main Activity Vs. Incidental Activity: The question as to what is the main activity of the assessees and what is their incidental activity is something which has not been established by the assesees before the Tribunal. Therefore, the applicability of the apex court’s decision is highly debatable and it cannot be applied to the facts of the present case. In the circumstances, no error arises in holding that the applicants are liable to service tax.

  • STO 2009 CESTAT 573
  • Reimbursement: The Tribunal referred the matter to the Larger Bench to decide as to whether the charges such as godown rent, loading and unloading, security charges, electricity, cartages, stationery & printing, telephone, fax charges, photo expenses, repacking charges, travelling charges, internet charges etc. are to be excluded from gross value on the ground that the same are re-imbursed by the service receiver. There is a conflicting view on the issue.

  • STO 2009 CESTAT 569
  • Sale of pre-paid and post-paid connections: The applicant is a distributor for sale of pre-paid & post-paid connections and recharge coupons. No material to determine the tax liability under the purview of "C & F Agent".

  • STO 2009 CESTAT 275
  • DRS: As per DRS, once an order is issued determining the amount payable and a certificate in Form-2 evidencing payment of the dues in terms of the order is issued by the competent authority, any appeal pending in the matter shall stand withdrawn.

  • STO 2009 CESTAT 535
  • Contrary stand: Adjudicating authority had taken a contrary stand inasmuch as he treated the services of the appellant prior to 1.7.03 under the category of C & F agent and subsequently under Business Auxiliary service which is not proper and legal. The matter is required to be examined by the adjudicating authority after going through the agreement and the case laws placed by the parties. Matter remanded back.

  • STO 2009 CESTAT 340
  • Service tax: Clearing and forwarding agent: Whether telephone charges, postage / courier charges, consultancy charges and computer charges would be included in the taxable value: The Commissioner (Appeals) allowed the refund claim. The identical issue has been referred to the Larger Bench of the Tribunal in the case of Amit Sales vs. CCE, Jaipur I. In view of that, there is no reason for staying the operation of the impugned order.(Para 2).

    Revenue appeal rejected.

  • STO 2009 CESTAT 265
  • Clearing and Forwarding Agents Vs. Commission Agents: An agent engaged only for procuring purchase orders for the vendor on commission basis does not engage in any of the activities enumerated in the circular of the Board, directly or indirectly. Such an agent engaged to procure orders and not entrusted with the work of clearing and forwarding of the goods, was a commission agent and not a 'Clearing and Forwarding Agent'.

  • STO 2009 CESTAT 250
  • Rent-a-Cab Services: The service tax liability along with interest discharged before the issue of show cause notice. Waiver of pre-deposit of penalties ill the disposal of the appeal. (para 3)

  • STO 2009 CESTAT 109
  • Service Tax: Authorised service station: Supply to DGS & D: Applicant have received the vehicles from Maruti Udyog Ltd. which were sent to DGS & D through them. Revenue has proposed tax on the category of "clearing and forwarding agent". Appellant drew attention of the Bench towards correspondence of the applicant with the DGS&D, customer of Maruti Udyog Ltd. DGS&D and Maruti Udyog Ltd. entered into a rate contract for this service. Applicant has made out a prima facie case for waiver of pre-deposit (Para 2,4).

    Stay granted.

  • STO 2009 CESTAT 101
  • Services of Clearing and Forwarding Agent Vs. Commission Agent : Agency engaged in procurement of orders for vendor on commission basis are not clearing and forwarding agents. Activity of procuring orders on Commission basis is  independent of clearing and forwarding operations.

  • STO 2009 CESTAT 117
  • Penalty: the gross amount charged by the appellants to Intas i.e. commission, reimbursement of expenses and incentive was leviable to service tax and deliberate attempt was made to avoid paying service tax by misdeclaring the C and F charges as reimbursement charges: Penalty under Section 76 and 78 maintainable.

  • STO 2009 CESTAT 249
  • Service Tax: Service of consignment agents: Demand: Scope: The show cause notice has subsequently brought out the valuation indicating the suppression of facts. In any case, the appellants paid the service tax deposit. Appellant has not even made the copy of the contract available to the department. Prima facie, the appellants do not have a strong case.(Para 3,4).

    Pre-deposit ordered.

  • STO 2009 CESTAT 44
  • Clearing & Forwarding Agent: amount received by them as expenses incurred towards loading and unloading charged paid to head load workers pool under the Kerala Head load Workers Act, is only reimbursement and this was not proved by them with evidence before the Original Authority.

  • STO 2009 CESTAT 142
  • Demand: Stay : In the appellant's own case on the very issue it was held that the activity carried out by the appellants in transporting the crude oil to the Petroleum Companies would not come under the category of 'Clearing and Forwarding Services': Stay granted and matter fixed for early hearing.

  • STO 2008 CESTAT 534
  • Service Tax: Clearing and Forwarding Agent: Scope and liability: Valli Inc is described as a Consignment Sales Agent in the agreement between ITC Ltd and Valli Inc. As per the agreement, the appellant has to maintain a showroom, display the products of ITC and remit the proceeds promptly to ITC. The appellant is not an agent of ITC but an independent dealer dealing in lTC's branded goods. The appellant does not receive goods of lTC, store them and consign them to different destinations for ultimate sale. Merely receiving the goods in order to sell them from its own premises will not amount to clearing of the goods as a C & F Agent. In Medpro Pharma Pvt. Ltd Vs. CCE, Chennai [STO 2006 CESTAT 74 ]. In the instant case, the appellants received goods from ITC and disposed them on sale from its own outlet. The appellant is not engaged in clearing and forwarding of the branded goods of ITC. The appellant does not satisfy the definition of a consignment agent as clarified in the Circular No.59/8/2003-ST dated 20.6.2003. Here the dealer receives the goods and sells them in retail to consumers. He has Sales 'Tax registration and issues bills for sales. No third agency is involved. The exclusivity clause, other conditions of agency agreement and the commission paid to Valli gives the arrangement the complexion of a franchise. These are dictated by the power of the brand involved. In the circumstances, the activity the appellant undertakes as per the agreement cannot be held to be Clearing and Forwarding Agent's service.(Para 6,7).

    Appeal allowed.

  • STO 2008 CESTAT 550
  • Service Tax: Clearing and forwarding agent: Waiver of pre-deposit: As the applicant received only commission and there is no evidence on record to show that they have provided the service of clearing and forwarding agent, therefore, prima facie, the applicant has a strong case in his favour.(Para 4).

    Stay petition allowed, pre-deposit waived.

  • STO 2008 CESTAT 574
  • Service Tax: Clearing & forwarding agent's service: Waiver of pre-deposit: Appellant is responsible for transportation of country liquor products from factory to depot and also from depot to retailers and also responsible for collection of recovery of sale proceedings. The accounts in respect of the depot are to be maintained by the applicant. The invoices are being issued in the name of manufacturer. Section 65(25) of Finance Act Definition of Clearing and Forwarding Agent's service is as under: "Clearing & forwarding agent" means any person who is engaged in providing any service, either directly or indirectly, connected with clearing and forwarding operations in any manner to any other person and includes a consignment agent". As the applicant is responsible for transportation of country liquor products from factory to depot and from depot to retailers and maintaining the depot for consideration and also responsible for maintaining the accounts, prima-facie, it is not a fit case for total waiver of service tax.(Para 5).

    Pre-deposit ordered.

  • STO 2008 CESTAT 360
  • Stay: Revision Order imposing penalty: Recovery of penalty stayed.

  • STO 2009 CESTAT 37
  • Service Tax: C & F agents service from 1999 to 2004: Reimbursement of expenses: Liability: This Bench in several cases had held that as far as C & F agency is concerned, the commission received for the services rendered only will be exigible to service tax. Thus if certain amounts are spent by the C & F agent on behalf of the Principal and later they are reimbursed then such amount would not be liable for service tax in view of decisions in the case of (i) Glaxo Smithkline Pharmaceuticals Ltd. Vs. CCE, Mumbai (ii) S. Jayasree Vs. CCE, Mangalore (iii) E.V. Mathai & Sons Vs. CCE, Cochin STO 2003 CESTAT 11 (Para 6).

    Appeal allowed.

  • STO 2008 CESTAT 492
  • Service Tax: Clearing & Forwarding Agent: Scope: From a reading of the agreements, the respondents are not owner of the goods. Therefore, they are not entitled to sell on their own. Admittedly, the goods have been sold with the stamping on the invoices which indicated that the status of the respondents as consignment agents. The various conditions governing, the relationship between the respondents and the principals indicate that the goods are sold at prices fixed by the principals and sold on behalf of the principals and delivered to the customers on behalf of the principals and the entire sequence of activities/responsibilities undertaken by the respondents show that they act only as consignment agent. The "consignment agent" is specifically included under the category of 'clearing and forwarding agent' by the inclusive definition. The respondents have undertaken several activities which have been considered to be activities of 'clearing and forwarding agent'. The relevant portion of the decision of the Larger Bench of the Tribunal in the case of Medpro Pharma Pvt. Ltd. vs CCE, Chennai, STO 2006 CESTAT 74 is worth reproducing at this stage – rendering only "forwarding" service cannot make the appellant cease to be a "Clearing and Forwarding Agent", so as to save him from the tax. Some customers may want only clearing operations, while some forwarding, and others both. The expression "clearing and forwarding operations" is a compendious expression of nature of services offered, any of which will bring the service providers in the tax net of this category. Moreover, in the process of forwarding operations - clearance stages may arise such as at octroi posts or subsequent transits. In view of the above discussion the "C&F Operations" cannot be dissected into "Clearing" and "Forwarding" as they fall in the common category and hence all or any of the services of that category will be services provided by a "C&F Agent" (Para 6,7).

    Revenue appeals admitted.

  • STO 2008 CESTAT 332
  • Service Tax: C & F agent: Scope and liability: Appellant corporation is a procurement agent for the Government of Chhattisgarh. If this view is accepted, then the appellant would be rendering the services to the State Government and State Government would become the recipient of services. It has not been shown that the State Government is required to pay any charges to the appellant corporation for the so called services rendered. In this view the appellant cannot be considered as an agent rendering services to the State Government for consideration, in spite of the fact that the agreement between the appellant corporation and the supplier of liquor refer the appellant as procurement agent. As regards the relationship between the appellant corporation and the supplier of the liquor, on perusal of the agreement, transfers are in the nature of sale and purchase. The license granted to the appellant corporation is also for purchase and sale of liquor and the agreement clearly refer to prices FOR destination. Overlooking all these evidences, it will not be proper to conclude that there is no sale by appellant corporation and that they are acting as procurement agent. At any rate, they are not undertaking any agency function for the supplier or liquor manufacturer-supplier of liquor. Notwithstanding the fact that the appellant has chosen to describe their income from sale of liquor as commission in the balance sheet, the appellant corporation is engaged in purchase / sale of liquor and cannot be considered as C & F agent.(Para 6,7).

    Appeal allowed.

  • STO 2008 CESTAT 569
  • Consignment Agent: C&F Agent different category and different contract: Transportation charges not includible: Cost of cutting, welding and other activities undertaken as Consignment Agent not includible in the value for paying service tax as Consignment Agent.

  • STO 2008 SC 215
  • C&F Services: What is necessary for determining the question is as to whether the purported job of the appellant as a clearing and forwarding agent was incidental to its main activity, namely, getting orders from the clients and selling the products to various customers of the company or not.

  • STO 2008 CESTAT 168
  • Limitation: The facts were known to the department and the Commissioner (Appeals) is justified in giving a finding that longer period cannot be invoked. Revenue’s appeal rejected.

  • STO 2008 CESTAT 79
  • Reimbursible expenses: The expenses incurred by the appellants in connection with the activity of sale of goods activity were reimbursed by their principal. A consignment agent who carried out sale of goods on behalf of the principal was held to be a “C & F Agent” for service tax purpose for a period prior to the date on which “Consignment Agents’ Service” was brought within the purview of “Business Auxiliary Service”.

  • STO 2008 P&H 227
  • Clearing & Forwarding Agent: Under the agreements entered as (i) Del Credre Agent Agreement and (ii) Distributor Agreement, the assessee is liable to pay service tax on the services rendered by him as commission agent of M/s. IPCL.

    Activities of Distributor such as timely collection of payments, realization of dues from the buyers and making timely payments to the principal, attending to the satisfaction of the customers, also to the promotion of sale of the goods, dealing with the matters connected with sales tax, Octroi, local taxes, and so on being indirectly related for the activity of clearing and forwarding operations are clearly covered within the ambit of the definition.

  • STO 2008 CESTAT 172
  • Clearing & Forwarding Agent : Sub Contractor engaged : Prima facie service has been rendered mainly through the sub-contractors on payment of an amount to the sub-contractor by the appellant which is less than what the appellant has received from SAIL. The recovery of a sum entered in the balance sheets of the appellant as receipt of Service Tax may not be, prima facie, an amount actually representing Service Tax and therefore prima facie case made out. Waiver granted.

  • STO 2008 CESTAT 189
  • Clearing and Forwarding: The Larger Bench in the L&T case has held that mere procuring or booking orders for the Principal by an agent on a payment of commission basis would not amount to providing services as clearing and forwarding agent within the meaning of definition of that expression under Section 65(25) of the Finance Act, 1994. Appeal allowed.

  • STO 2008 CESTAT 26
  • Accrual basis: As the amount of service tax or any consideration for the services rendered not received, no liability to pay service tax. Inference drawn by the authorities from the relevant entry in the balance sheet showing receipt of commission and handling charges - on accrual basis - may not be sufficient or justified. Matter remanded back.

  • STO 2008 CESTAT 210
  • Sales tax v/s service tax : The appellants have been covered under Sale of Goods Act for the purpose of levy of Sales Tax. They have sold the goods on behalf of the principal as an Agent and their activity involved in selling the goods to the purchasers and they were not handing the goods to come within the category of Clearing and Forwarding agent or as a consignment agent. Order set aside. Appeal allowed.

  • STO 2008 CESTAT 188
  • C&F Agent : Only the remuneration relating to services can be taxed. Only the commission rendered in respect of the C&F activity alone liable to service tax and not various other reimbursement which arise in the course of rendering of the service like loading/unloading, coolie/cartage, handling freight charges etc.

  • STO 2008 CESTAT 18
  • Reimbursible expenses : Appellants having rendered certain services for which they were reimbursed actual expenses and such services rendered by the appellants to maintain good relationship with MUL their principal. There being no evidence forthcoming to show that they had received commission for the above activities, prima facie case made out for waiver of  the tax and interest and ordered accordingly.

  • STO 2008 CESTAT 28
  • C&F Agent Service : While rendering the services of Clearing & Forwarding Agent various expenses like rent, loading and unloading, postage and telegraph, printing and stationary, telephone charges, sundry expenses etc. incurred by  service provider for and on behalf of their principals not includible in the taxable value for paying service tax.

  • STO 2007 CESTAT 1224
  • C&F Agent : The activity of mere procurement of order not covered.

  • STO 2007 CESTAT 1337
  • C&F Agent : Service of C & F agent provided to the fertilizer company also godown given on rent to the said company for warehousing the goods. The Revenue wants to add the rent while arriving at the assessable value of the service provided by C & F agent. As the godown is used for warehousing the goods regarding which applicant performed the service of C & F agent, the case law relied upon distinguished on facts. Prima facie case not made out.

  • STO 2007 CESTAT 1334
  • Consignment Sales Agent : Besides the commission for the services rendered to the principals, the principal has also reimbursed various expenses such as freight, loading and unloading and other expenses incurred by the appellants for an on behalf of the principal. Relying on its own decision in the case of Sangamitra Services Agency, wherein view was taken that such elements are not added in the value of taxable services.

  • STO 2007 CESTAT 1142
  • Stay: Clearing & Forwarding Agent: The appellants do not engage in the activity of clearing & forwarding of the goods from the premises of the ‘manufacturer to the premises of the buyer, which is normally the activity of a Clearing & Forwarding Agent. They are actually carrying out their activity within the Customs area. For example, they are unloading the goods from the ship to the barge and from the barge, they are taken to the wharf, and from the wharf, they are unloaded, from the wharf after customs clearance, they are taken to the godowns and in the godowns after packing the material, they are transported. For the various expenses incurred by them which are reimbursable, they are receiving certain amounts, which are incurred on behalf of the principal. Their income is actually only Agency Commission on which they had been paying Service Tax regularly.

  • STO 2007 CESTAT 1067
  • C&F Agent : Appellant being a mere coordinator without having control over the goods of the principal nor even as agent to deal with the same, the activity carried out by the appellant shall not liable to be classified under the head of “Clearing and Forwarding Agent”.

  • STO 2007 CESTAT 1310
  • Clearing & Forwarding Agent : Procuring orders and receiving commission would not come within the ambit of Clearing and Forwarding Agent service.

  • STO 2007 CESTAT 1213
  • C&F Agent : Merely booking orders and receiving the commission, the activity was in the nature of principal and agent, and not as Clearing and Forwarding Agent.

  • STO 2007 CESTAT 1123
  • Clearing & Forwarding Agent Service: Booking of orders done by the broker on behalf of the appellants cannot be covered under C & F Agent’s services.

  • STO 2007 CESTAT 1245
  • Consignment Agent : Appellant being declared sick by BIFR during the period in dispute when the service tax was not paid. Section 80 applicable for waiver of penalty under section 76 and 77 as there was a sufficient cause which prevented appellant from paying service tax.

  • STO 2007 CESTAT 1138
  • Validity of legislation : Refund : No individual can acquire a vested right from a defect in a statute and seek a windfall from the legislature’s mistakes. Validity of legislations retroactively curing defects in taxing statutes is well recognised and courts, except under extraordinary circumstances, would be reluctant to override the legislative judgment as to the need for and the wisdom of the retrospective legislation.

    Refund granted: by Administrative authority in respect of taxes realized by mistake is nothing impermissible in view of judgment of Hon’ble High Court of Allahabad in the case of Prism Cement Limited v. Union of India - STO 2000 All 11

  • STO 2007 CESTAT 1199
  • C&F Agent : A ‘Consignment Agent’ cannot be brought within the category of ‘C & F Agent’. After granting waiver, the appeal itself allowed.

  • STO 2007 CESTAT 1059
  • Clearing & Forwarding Agent : There was no clearing or forwarding activity involved while the licensee acted only as an auctioneer for selling cardamom brought to him by growers/dealers. Mere receiving and storing goods for auctioning them has nothing to do with clearing and/or forwarding operations contemplated under the taxable service of ‘clearing and forwarding agent’.

  • STO 2007 CESTAT 1063
  • Order: Judicial pronouncements not considered by the Commissioner (Appeals), a non speaking order passed. Matter remanded.

  • STO 2007 CESTAT 1109
  • C&F Agent : Mere activity of forwarding or booking orders by itself will not bring the Indenting Agent under the C&F category. Likewise, the activity of Del Credere Agent does not’ come within the C&F category. Subsequent clarifications will not be applicable to past cases.

  • STO 2007 CESTAT 1056
  • Stay: Clearing & Forwarding Agent Service: Exploration and exploitation of hydrocarbons in the area of Krishna Godavari Basin. In terms of the Agreements, the extracted oils were to be transported and stored at Ravva Plant in South Yanam terminal. Since the appellants had received payment for this, they should have collected service tax also from ONGC. Stay partly allowed.

  • STO 2007 CESTAT 1151
  • C&F Agent : Deductions : Appellants appointed as C&F agent certain expenses reimbursable as per terms of agreement, appellants liable for deduction of reimbursable expenses.

  • STO 2007 CESTAT 98
  • Service Tax: Clearing and forwarding: Scope: Demand: The terms of the agreement between the parties suggests that the agreement is for sale and purchase. It is not an agreement for Clearing and Forwarding.(Para 3).

    Stay application allowed.

  • STO 2007 CESTAT 97
  • Service Tax: Clearing and Forwarding Agents of a foreign company: Scope and liability: Decision of the Tribunal (Division Bench) in the case of Prabhat Zarda Factory (India) Ltd. v. Commissioner of Central Excise, Patna, STO 2002 CESTAT 22 (Tri.-Kolkata)] was overruled by a Larger Bench in the case of Larsen & Toubro Ltd. v. Commissioner of Central Excise, Chennai STO 2006 CESTAT 66. As per the Larger Bench decision, persons engaged in mere procurement of orders on commission basis do not fall under the definition of 'Clearing and Forwarding Agent' under Section 65 of the Finance Act, 1994. The appellants were engaged only in such an activity. The demand of Service Tax is, therefore, not sustainable in law.(Para 1).

    Appeal allowed.

  • STO 2007 CESTAT 1176
  • Stay: Clearing & Forwarding Agent: Reliance placed by appellants on decision of Tribunal which are distinguishable in the case of M/s. Chandan Chemicals the goods were delivered by the manufacturer M/s. Hindustan Lever Ltd. to the commission agent for clearance, storage in godown and further sales at prices indicated by the manufacturer while in the Super Poly Fabriks as in the case of clearance of goods by the commission agent in the present case was from the factory of manufacturer onwards. Applicants directed to pre-deposit Rs. 2 lakhs. Stay partly allowed.

  • STO 2007 CESTAT 455
  • C&F Agent: Reimbursible expenses: The amount received by the appellants from the principals as remuneration/commission for the service of clearing and forwarding the goods has been rightly adopted as taxable value. Reimbursible expenses not includible.

  • STO 2007 CESTAT 1041
  • Stay Application: Clearing & Forwarding Agent Service: The element of physical handling of goods is essential for levy of service tax on any services in the category of clearing and forwarding agents’ services. Application allowed.

  • STO 2007 CESTAT 509
  • Service Tax: C & F agent services: Scope and liability: Commission received by appellant in respect of the procurement of purchase orders : Appellant is engaged in the manufacture of craft paper and also are acting as selling agents of various parties for causing sale of their products. During the period in dispute, the appellants received commission from 21 parties. Out of these 21 parties, the appellants had written agreements with M/s. Rainpur Distillery and M/s. Holosticks India Ltd. They are only acting as commission agent and not as a clearing and forwarding agent. Larger Bench of the Tribunal in the case of Larsen & Toubro v. CCE Mumbai as reported in STO 2006 CESTAT 530 Trade Notice No. 87/97-10/ST/97, dated 14-7-1997 where it has been observed that normally there was a contract between the Principal and Clearing and forwarding agent in respect of the terms and conditions and which also indicate the commission to which the C&F agent is entitled. A clearing and forwarding agent normally undertakes the following:-(a) Receiving the goods from the factories or premises of the principal or his agents; (b) Warehousing these goods; (c) Receiving despatch orders from the principal; (d) Arranging despatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal; (e) Maintaining records of the receipt and despatch of goods and the stock available at the warehouse; (f) Preparing invoices on behalf of the principal. Thus the appellants are not warehousing the goods or taking any steps for clearance of the goods from the manufacturer's place. Therefore, they are not undertaking any activity as clearing and forwarding agent.(Para 31,32). It is clear that the appellants were appointed as commission agent for the purpose of procuring orders. The Revenue had not produced any evidence to show that the appellants had received other consideration except for commission for procurement of orders.(Para 36).

    Appeal allowed.

  • STO 2007 CESTAT 168
  • Service Tax: 'Consignment Agent' does not fall within the category of 'Clearing & Forwarding Agent': Scope & liability: The issue is no longer res integra and the matter has been decided in assessee's favour, viz M/s. Mahavir Generics v. CCE, Bangalore - STO 2004 CESTAT 77, (i) Mitsun Steels Pvt. Ltd. v. CCE - STO 2006 CESTAT 580, (ii) Medpro Pharma Pvt. Ltd. v. CCE - STO 2006 CESTAT 74, (iii) Vaman Pharma Private Limited v. CCE - STO 2005 CESTAT 221. Revenue relied on the ruling rendered in the case of M/s. Prabhat Zarda Factory (India) Ltd. v. CCE - STO 2002 CESTAT 22 in the grounds of appeal. However, this judgment has been overruled by the Larger Bench judgment rendered in the case of L & T Ltd. v. CCE - STO 2006 CESTAT 66, wherein it has been held that the activity of procuring orders has been treated separately by Parliament under Business Auxiliary Services and they are independent of clearing and forwarding operations. Therefore, the reliance by the revenue in the grounds of appeal on the ruling of M/s. Prabhat Zarda Factory (supra) is no longer acceptable. The same has been overruled by the Larger Bench judgment of L & T Ltd. (Supra). Therefore, there is no other ground for taking a different view, then the one already expressed.(Para 4).

    Revenue appeal dismissed.

  • STO 2007 CESTAT 167
  • Service Tax: Service Tax on Del Credere Agent: Scope: This Bench in the case of Raja Rajeswari International Polymers (P) Ltd. v. CCE, Bangalore-III as reported in STO 2005 CESTAT 347 went into details of the activity of Del Credere Agent and after due consideration of its meaning and activity has clearly held that they do not come within the category of 'C & F Agent'. The matter was again taken up before several Benches of the Tribunal including the Larger Bench judgment in the case of L & T Ltd. v. CCE - STO 2006 CESTAT 66 and has decided the issue in assessee's favour. The issue is no longer res integra, therefore, there is no merit in these appeals(Para 5).

    Revenue appeals rejected.

  • STO 2007 CESTAT 532
  • C&F Agent: Amounts collected by appellants during performing services of C&F Agent not to be included in the taxable value for discharging service tax liability under C&F Agent.

  • STO 2007 CESTAT 561
  • Service Tax: Clearing and Forwarding Agents: Scope: The appellants have denied having carried out the activities of "clearing and forwarding agents" while the Department was mere looking into the terms of agreement without having examined the material evidence and the activities carried out by the appellants. Tribunal judgment rendered in the case of Larsen & Toubro Ltd. v. Collector of Central Excise - STO 2006 CESTAT 66, Delhi held that mere procuring or booking orders for the principal by an agent on payment of commission basis would not amount to providing services as "clearing and forwarding agent". The appellant's plea is accepted in the light of the large number of judgments holding that procuring orders on commission basis would not come under the definition of "clearing and forwarding agent", but it falls under the definition of "business auxiliary service".(Para 6).

    Stay application allowed.

  • STO 2007 CESTAT 177
  • Service Tax: Application for rectification of mistake: Users of clearing and forwarding service had liability to pay service tax prior to 1-9-1999. The period of dispute in the present case is 17-10-1998 to 31-8-1999 and therefore the assessee was liable to pay service tax on clearing and forwarding service for this period. However, this tax should have been demanded by the Revenue within 30 days from 12-5-2000 as prescribed under Section 117 of the Finance Act, 2000. This aspect was noted in para 4 of the final order. The Revenue has not found any mistake in the said para, nor has learned SDR pointed out any. As the relevant show-cause notice was issued only in the year 2002, the demand of tax is beyond the period of limitation prescribed by Parliament." The final order shall be read as amended.(Para 2,3).

    Revenue application allowed.

  • STO 2007 CESTAT 373
  • Service Tax: Clearing and Forwarding Agent's Service: Scope: Commissioner (Appeals) forgot to discuss the case involving the transactions between the appellants and the three companies viz. M/s. Nordberg Mills, M/s. Hindustan Motors Ltd. and M/s. Hindustan Power Plus Ltd. In the impugned order, he focussed on the transactions between the appellants and 'Castrol' only. The limited issue involved in the Castrol-related case pertains to the demand of interest on the Service Tax paid by the assessee. The substantive issue, which ought to have been addressed, in the first instance, by the Commissioner (Appeals), was whether the appellants were liable to pay Service Tax, in the category of "Clearing and Forwarding Agents", on the amounts collected from the aforesaid three companies during the period of dispute.(Para 5).

    Appeal allowed by way of remand.

  • STO 2007 CESTAT 156
  • Service Tax: C&F Agent: Penalty: The point for determination is that whether the respondent/assessee can claim immunity from the penalty amount. Commissioner (Appeals) while relying upon the decision in the case of CCE, Bhopal v. Bharat Security Services & Workers' Cont. STO 2005 CESTAT 245 gave benefit to the respondent/assessee and dropped the penalty amount. In the above cited decision, service tax along with interest was paid prior to 30-10-2004 as in this case. The show cause notice was issued to the assessee on 20-10-2004 when the amnesty scheme(Extraordinary Taxpayer Friendly Scheme, 2004) was under force. The department has initiated the action vide show cause notice 20-10-2004 when the above referred scheme was in operation. Since the assessee has already paid service tax along with interest even prior to the issue off show cause notice and prior to the introduction of the scheme, no penalty can be imposed.(Para 5).

    Revenue appeal rejected.

  • STO 2007 CESTAT 154
  • Service Tax: Receiver of clearing and forwarding service: Refund: The issue is the refund of the Service tax paid by the appellants for the period from 17-10-1998 to 30-6-1999. Consequent to the Supreme Court decision in Laghu Udyog Bharati case amendments were carried out in terms of Section 116 of the Finance Act, 2000 making recipient of the clearing and forwarding service liable for payment of Service tax for the period from 16-7-1997 to 16-10-1998. The Chennai Tribunal in the case of Commissioner of C. Excise, Tirunelveli v. DCW Ltd. STO 2005 CESTAT 44, has exhaustively dealt with the issue and has held that the Parliament has authorised the collection only up to 16-10-1998 and the Revenue cannot assume authority to collect such tax from the service recipient for any period beyond 16-10-1998. It has also held that Section 117 is procedural and does not in any way alter in substantive provision brought on the statute book by Section 116. Thus in terms of law as interpreted by the CESTAT's Chennai Bench, no service tax liability can be fastened on the recipient of the C & F agent beyond 16-10-1998. Therefore there are no merit in the Revenue's appeal.(Para 7).

    Revenue appeal rejected.

  • STO 2007 CESTAT 68
  • Service Tax: C & F Services: Penalty u/s 76: The appellant contests imposition of penalty under Section 76 of Finance Act, 1994. The plea that the appellant was new assessee, not aware of the imposition of service tax on them as C & F service provider appears goods enough 'reasonable cause' for waiver of penalty under section 80 ibid in view of the fact that immediately prior to 1-9-99 (the date on which the appellant's liability starts) the service receiver was liable to pay service tax and that service tax relating to C & F service was paid before the issue of the SCN. Decision of Hon'ble CESTAT Mumbai in the case of CCE, Mumbai v. M/s. Top Detective Security Pvt. Ltd., STO 2004 CESTAT 128 and the decisions relied upon by the appellant in Para 3 above refer. It has also not been alleged that the appellant had been collecting the service tax from the service receivers during the material period but did not pay the service tax. Penalty imposed under Section 76 ibid is, therefore dispensed with(Para 4).

    Revenue appeal dismissed.

  • STO 2007 CESTAT 10
  • Service Tax: Clearing and Forwarding Agents: Scope and liability: The essential character of the functions of the appellants in relation to TAC and TPL were as a Marketing Agent canvassing sales of the products of the principals and that the appellants were not just C & F Agents of TAC and TPL. The services rendered by the appellants were covered by "Business Auxiliary Service" which was introduced with effect from 1-7-03. Therefore, the services of the appellants were not taxable under the head 'C&F Agent'. However, he did not deny that the activities enumerated in the Board's Circular B43/7/97-TRU dated 11-7-97 were undertaken by appellant on behalf of their principals. The issue involved is thus contentious. (Para 3,5).

    Pre-deposit ordered.

  • STO 2007 CESTAT 376
  • C&F Agent: Elements, such as godown rent, establishment expenses, incentives, STD calls, etc. not to be added in the value of the taxable service rendered by 'clearing and forwarding agents'

  • STO 2007 CESTAT 53
  • Service Tax: Whether consignment agents were clearing and forwarding agents: Scope and liability: The failure to pay tax, if at all, is the result of a bona fide belief by the appellant that the service in question was not taxable as "clearing and forwarding" agency service.(Para 7). Failure to comply with the procedural requirement of law cannot be held as resulting from mala fides but from a bona fide belief that tax was not attracted. Reliance in this connection is placed on the decision of this Tribunal in the case of CCE v. Wonderax Laboratories (I) Pvt. Ltd. reported in STO 2004 CESTAT 315. (Para 9).Conflicting views had been taken by the Tribunal on the issue of taxability of consignment agent as clearing and forwarding agent. It is well settled that when different views are prevalent about the applicability of a tax, extended period is not available to the revenue for the purposes of raising demands. The present is such a case. The Tribunal itself had rendered conflicting decisions and the issue was subsequently decided by a Larger Bench [2007 (3) S.T.R. 321 (Tri. - LB)]. In this factual situation, we are of the opinion that the procedural failure on the part of the appellant was the result of bona fide belief that it was not liable to pay the tax and that extended period is not applicable in the facts of the case.(Para 11).

    Appeal allowed.

  • STO 2007 CESTAT 276
  • Service Tax: Clearing and forwarding agents: Taxable value: Includability of actual loading/unloading/handling/cartilage etc. for which they get the reimbursement: The issue is covered by the decision of this bench in the case of BS Refrigeration Ltd. v. CST, Bangalore, STO 2006 CESTAT 154, Prima facie appellants are likely to succeed in the matter(Para 1,3).

    Pre-deposit waived, stay allowed.

  • STO 2007 CESTAT 226
  • Service Tax: C & F agents: Demand: Cum tax amount: Explanation II to Section 67 of the Finance Act, 1994 was inserted only on 10-9-2002 which only clarifies the general principle that when no tax is separately collected from the client, the gross amount collected is inclusive of the tax. This principle is applied in the Central Excise cases also in the light of the Maruti Udyog Ltd. STO 2002 SC 149 case decided by the Supreme Court. Even in respect of removal without payment of duty when the duty liability is computed the sale value is taken to be cum-duty value. The same principle has to be applied here also in view of decision in the case of (a) Panther Detective Services v. CCE, Kanpur STO 2006 CESTAT 618, (b) Bhagawati Security Services v. CCE, Meerut-I STO 2006 CESTAT 167. Therefore, the impugned order is set aside and matter remanded to the Original authority for re-computation of the duty liability taking the gross receipt as inclusive of Service tax. It is seen that when the appellants came to know the correct legal position, they voluntarily paid Rs. 1,00,000/- even before the issue of show cause notice. In these circumstances, the imposition of penalty on the appellant is not sustainable. The same is set aside.(Para 5).

    Appeal allowed by way of remand.

  • STO 2007 CESTAT 61
  • Service Tax: Clearing and forwarding agent: Scope: Penalty: The respondent are providing the service as clearing and forwarding agent as relied upon the decision of the Larger Bench in the case of Medpro Pharma Pvt. Ltd. v. Commissioner reported in STO 2006 CESTAT 74. Tribunal in the case of Medpro Pharma Pvt. Ltd. v. CCE, Chennai reported in STO 2006 CESTAT 879 where the Tribunal after taking into consideration the provision of Section 80 of the Finance Act set aside the penalty. The Tribunal in the case of Medpro Pharma Pvt. Ltd. (supra) held that in view of the Section 80 of the Finance Act which provides that "no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure". Penalties set aside(Para 2).

    Revenue appeal allowed.

  • STO 2007 CESTAT 280
  • Service Tax: Clearing and Forwarding Service: Taxable value: For the period September, 1999 to March, 2000, the charges reimbursed to the appellants by the companies towards freight were held not to form part of the value of taxable services inasmuch as services provided in relation to the carriage of goods by road in goods carriage was found to be exempt from Service tax. This decision of the original authority was concurred with by the Commissioner (Appeals). Neither of the orders was challenged by the department. Hence, at this point of time, it is not in dispute that the actual expenses of the C&F Agent, reimbursed by the companies, towards freight was not liable to be included in the value of taxable service.(Para 3). However, for the period April-September, 2000, the original authority included similar freight in the value of taxable service in terms of the agreement and in terms of Section 67(i) of the Finance Act, 1994 and this decision was sustained by the Commissioner (Appeals). All such expenses were incurred by the C&F Agent in connection with rendering of Clearing and Forwarding Service and, therefore, the moneys received as reimbursement from the companies towards such expenses would form part of the value of taxable service. (Para 4).

    Appeals disposed of.

  • STO 2007 CESTAT 552
  • Service Tax: Appointing agents for procuring business: Record revealed that for procurement of business, agents were appointed by the appellant and for the services rendered by them, appropriate considerations were paid. Therefore, Section 68 of the Finance Act, 1994 cannot be interpreted in a manner that is not required, as held in Laghu Udyog Bharati v. Union of India STO 1999 SC 7, the Hon'ble Apex Court has held that without specific mandate from whom the tax shall be realised, there cannot be any imaginary levy without letters of law. The appellant being neither a service-provider nor a service-receiver, they should not be imaginarily taxed.(Para 3).

    Appeal allowed.

  • STO 2007 CESTAT 496
  • Service Tax: Consignment Agent: Scope: Appellants have not appeared before the Bench. The appellants have already deposited the service tax amount along with interest. They are claiming refund on the ground that they were not carrying on activities of 'Clearing and Forwarding' agent and therefore their activities do not fall within the ambit of the definition of 'Consignment agent'. Commissioner (Appeals) has analysed the matter and has found that the appellants have been receiving the goods from ITC and taking commission for the same. In similar facts and circumstances the Northern Bench of the Tribunal in the case of CCE, Jaipur v. M/s. Chopra Brothers STO 2005 CESTAT 261 has held that such transaction comes under the category of Clearing and Forwarding agent. The Commissioner (Appeals) has rightly followed the ratio of the cited Tribunal decision.(Para 3).

    Appeal rejected.

  • STO 2007 CESTAT 545
  • C&F Agent: Commission Agent: While defining C & F Agent, "Consignment Agents" are included in the said definition in the Finance Act, 1994. Therefore, it is correct to say that as far as Service tax is concerned, a Consignment Agent should be deemed to be a C & F Agent and the services rendered by a Consignment Agent are liable to Service Tax under the category of Clearing and Forwarding Agents. Tax rightly paid. No refund due.

  • STO 2007 CESTAT 357
  • Service Tax: C & F Agents: Scope and liability: The nature of the service is that they ensured timely collection of payment for sales from the customers to the above mentioned firms for their supply of Pig iron of various grades. In other words, they merely ensured timely collection of the payments for sales and for the above purpose, they received certain commission. This activity of guaranteeing timely payment would come within the ambit of 'Del Credere Agency' service and there are decisions of the Tribunal in the case of : (a) Sreenidhi Polymers Pvt. Ltd. v. CCE, Bangalore-III - STO 2005 CESTAT 364.(b) Raja Rajeshwari Intl. Polymers (P) Ltd. v. CCE, Bangalore-III - STO 2005 CESTAT 347 which hold that the services of Del Credere agency would not come within the ambit of 'C & F Agents'. In these circumstances, during the relevant period, the appellant cannot be charged with Service tax under the category of 'C & F Agents'.(Para 5).

    Appeal allowed.

  • STO 2007 CESTAT 312
  • Service Tax: C & F Agents: Scope and liability: The appellants had entered into dealership agreement with various companies for marketing their product. Power tillers are sold to the dealers on an outright sale basis and the relationship between them is that of a seller and buyer and not that of principal and agent. There is sale of goods and appellants are paying Sales Tax. Prima facie, they have a very strong case in their favour.(Para 4).

    Pre-deposit waived, stay allowed.

  • STO 2007 CESTAT 516
  • Service Tax: C&F agent: Taxable value: As per the Board's Circular No. 43/7/97-TRV (sic) (TRU), dated 11-7-97, the taxable value in relation to the services rendered by C&F agent shall be the gross amount of remuneration paid to such agent by the client. Service tax is leviable in the case on the gross remuneration or commission received by the C&F agent. The expenditure incurred by the appellant for transporting cement to the warehouse and to various destinations reimbursed by the principal as well as other items of expenditure reimbursed by the principal are prima facie not part of taxable value.(Para 4).

    Stay application allowed.

  • STO 2007 CESTAT 456
  • Service Tax: C & F agents: Scope and liability: Ensuring proper loading, proper filing of bills and following upon tanker movements to prevent theft etc. are not in the nature of clearing and forwarding service. The demand is not justified. Confusion as to identity of the service between the original authority and the first appellate authority is indicative of the same.(Para 8,9).

    Pre-deposit waived, stay allowed.

  • STO 2007 CESTAT 393
  • Service Tax: C & F service: Scope and liability: The appellant does not deal with the goods under transaction. It only books orders and receives a commission. While the impugned order has been passed relying on the decision of this Tribunal in the case of M/s. Prabhat Zarda Factory (India) Ltd. - STO 2002 CESTAT 22, it is seen that under a Larger Bench order of the Tribunal in the case of L & T v. CCE, Chennai as reported at STO 2006 CESTAT 66 it was held that decision in the Prabhat Zarda Factory case does not constitute correct law and dealing in goods by way of clearing and forwarding is essential to attract the tax liability. The impugned order is not sustainable in the face of the Larger Bench judgment.(Para 3).

    Appeal allowed.

  • STO 2007 CESTAT 513
  • Service Tax: Management consultancy: Scope and liability: The service rendered by a management consultant, according to the definition has to be "in connection with the management" of any organization. It also includes advice consultancy or technical assistance relating to conceptualizing, devising, development, modification, rectification or upgradation of any working system of any organization". The agreement between the parties, is for collaboration. That collaboration is in relation to sourcing and export marketing of cotton yarns. Para 2 of the agreement lays down the responsibility of one party (the appellant) and Para 3 lays down the responsibility of the other party. It is clear that the appellant's responsibility are in the areas of handling matters related to sourcing of material for export from all the mills in India. Sub-clause (a) to (e) of Para 2 mentions in detail the components of that service. Para 4 of the agreement stipulates that the commission received from mills by M/s. Innovative Textiles (P) Ltd. will be shared. A reading of the clauses of the agreement makes it clear that none of this collaboration agreement contain any of the elements of management consultancy. They do not relate to management of any organization. They also do not relate to advice, consultancy or technical assistance in any area. It is a partnership to help the customers to carry out exports. That is, carried out by obtaining orders, procuring materials and finding foreign buyers and none of these activities can be called any type of consultancy or advice. In view of what is noted above, the relationship between the parties is not that of a consultancy arrangement. Therefore, the tax demand made, by treating the appellant as a management consultant is not sustainable.(Para 6,7,8).

    Appeal allowed.

  • STO 2007 CESTAT 195
  • C&F Agent: Commission earned as middle man for providing services in between principal and procurer and vice versa not within the ambit of "Clearing & Forwarding Agent".

  • STO 2007 CESTAT 208
  • Service Tax: C & F Agents Service: Activity of "Stevedoring" (activity of loading and unloading a ship): Scope and liability: The main contractor has already discharged service tax on the activity of Stevedoring. In terms of the Trade Notice No. 5/98-ST, dated 14-10-1998 and the judgment cited in the case of BBR (India) Ltd. v. Commissioner of Central Excise, Bangalore-III STO 2006 CESTAT 162 the sub-contractor is not liable to discharge any service tax. The appellants have strong case on merits.(Para 4,5,6).

    Pre-deposit waived, stay allowed.

  • STO 2007 CESTAT 580
  • Service Tax C & F agents: Scope: The service is described as "supply and collection of electromechanical meters to various Govt. parties" "arranged sales of chemical" "arranged customers for supply of soda ash" etc. Thus, according to the notice, the revenue's case was that arranging customers, suppliers and collection of orders etc. were the service rendered and those services were in the category of clearing and forwarding. There is no any mention in these contracts or on the record that the appellant was concerned on engaged for clearing and forwarding goods. It is well settled (Larger Bench judgment) that unless the clearing and forwarding of goods is involved, levy of service tax as clearing and forwarding agent would not be attracted. The record does not disclose such involvement in any case. The appellants was not at all concerned with the clearance of the goods but was concerned with the procurement of goods only. (Para 7).

    Real estate agent: Scope: No service like purchase/hiring of real estate is rendered. Therefore, the appellant was not acting as a real estate agent. That demand is also clearly erroneous.

    Appeal allowed.

  • STO 2007 CESTAT 88
  • Clearing and Forwarding Agent: Mere booking of orders for the principal by an agent on commission basis are not taxable as clearing and forwarding agent service.

  • STO 2006 CESTAT 499
  • C&F Agent: Valuation: Service tax has to be collected only on the amounts received for rendering services towards C & F Agents and other elements like godown rent and salary paid to the clerks are required to be excluded.

  • STO 2006 CESTAT 652
  • Service Tax: C & F agents: Scope: Services rendered by the applicant would not fall in the category of 'clearing and forwarding agent' inasmuch as the procurement of orders, collection of payments and collection of statutory forms, do not, in any way, constitute clearing and forwarding. Reliance has been placed on the decision of the Larger Bench of this Tribunal in the case of Larsen and Toubro reported in [STO 2006 CESTAT 66 ].(Para 2,3).

    Stay application allowed.

  • STO 2006 CESTAT 115
  • Service Tax: Delay in payment of tax: Waiver of pre-deposit: The delay has not been correctly calculated by the original adjudicating authority. There was a delay of 94 days, whereas the Assistant Commissioner has considered the said delay as four months. The delay arrived at by the Assistant Commissioner are higher than the actual days of delay in depositing the Service Tax. There is discrepancy in computing the number of day's delays in depositing the Service Tax. For the said purpose, the impugned order is set aside and remand the matter to the original adjudicating authority for recalculation of penalty amount in terms of the Section 76 (Para 2,4).

    Appeal allowed by way of remand.

  • STO 2006 CESTAT 635
  • Service Tax: C & F agents: Scope: The appellant have purchased and sold goods from the principals as their distributor. On purchase of the goods, the ownership changes to the appellant and as owner, dealer or transferee of the goods, it was in his own interest to promote the sales activities and to make advertisement and keep the trained salesman and hence, they are part of the dealers job. This cannot be treated as service rendered to the principals namely the manufacturers. If there was any special relationship or additional consideration leading to charging of lower price to the appellant, at the most, it can become an issue relating to valuation of the goods. The discount given by the manufacturer cannot be taken as service charges. The decision of the Commissioner (Appeals) in treating the appellant as provider of clearing and forwarding service is erroneous.(Para 5).

    Appeal allowed.

  • STO 2006 CESTAT 109
  • Service Tax: Clearing and Forwarding Agents: Demand: The appellants are not carrying on any activity of 'Clearing and Forwarding Agent' in terms of the definition appearing in Finance Act, 1994. They were only promoting sales of computer through overseas buyers. The Larger Bench in the case of Larsen & Tourbo Ltd. v. CCE, Chennai as reported in STO 2006 CESTAT 66 has held that promoting sales in India cannot be brought within the ambit of 'C & F Agent' Services. When this be the case, the promotion of sales abroad and marketing in India also cannot be brought within the ambit of 'C & F Agent' Services as held in the impugned order. (Para 4).

    Appeal allowed.

  • STO 2006 CESTAT 809
  • Service Tax: Clearing and Forwarding Agents: Liability: Appellants have already paid the service tax on the commission received by them. So far as the amounts collected on behalf of the principal, they contend that they are not liable to pay the same. In this regard, he relies on the stay order of the Chennai Bench in the case of Sangamitra Services Agency v CCE, Chennai - STO 2005 CESTAT 178 and Mumbai Bench Order in the case of Chrispal Shipping Co. Pvt. Ltd. v CCE, Mumbai - STO 2006 CESTAT 27 He also refers to the ruling of this bench rendered in the case of E.V. Mathai & Co v. CCE, Cochin - STO 2003 CESTAT 11(Para 1,2).
    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 644
  • C&F Agent: Demand: As per the terms of the agreement, appellants were hired for canvassing and advancing the sale of the principal's production and also to procure orders for the same. In such a scenario, they had to be held as commission agent rather than consignment agent. The services as commission agent were levied to tax under the category of the business auxiliary services w.e.f. 1-7-2003. The period in the present appeal is prior to the said date. As such, it has to be held that no tax was liable to be paid by them during the said period.

  • STO 2006 CESTAT 617
  • C&F Agent: Penalty: Amnesty Scheme : Amnesty scheme was not applicable to those who had earlier got themselves registered and did not pay service tax deliberately. Act of not filing of the returns for the earlier period while filing returns for the subsequent period on the face of it leads to an inference of suppressing/concealing the value of taxable services rendered by the appellant during the earlier period from 1-9-99 to 31-3-2002. Therefore, even apart from non-applicability of the amnesty, the appellant was liable to penalty under Section 78 on the ground of suppressing the disclosure of its liability for the said period.

  • STO 2006 CESTAT 251
  • Service Tax: Clearing and forwarding service: ROM: A provision under the Finance Act, 1994 is yet to be indicated by the Revenue for levy of service tax from recipients of clearing and forwarding service for any period subsequent to 16-10-98. Section 116 of the Finance Act, 1998 had introduced a provision in the Finance Act, 1994 for making recipients of clearing and forwarding service liable to pay Service tax for the specified period 16-7-97 to 16-10-98. No such provision was made for the subsequent period. The amended definition of 'assessee' in the Finance Act, 1994 cannot by itself, create tax liability for recipients of clearing and forwarding service for the period subsequent to 16-10-98, nor can any amended provision of the Service Tax Rules 1994 create such liability. No error found in the order(Para 2,3).
    Application for ROM dismissed.

  • STO 2006 CESTAT 658
  • Service Tax: C & F Agents: Valuation: The appellants are covered under the category of C&F Agents. Certain elements are added by the revenue after the assessments. These elements have no connection with the services rendered by them especially freight charges and other expenses. The freight charges came into the net on a later date. On this very issue this Bench has allowed certain appeals. Prima facie, some of the elements like freight charges and other expenses are not related to the C&F services. Prima facie the appellants have a good case on merits.(Para 1,2).

    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 621
  • Service Tax: C&F agent: Waiver of pre-deposit: Agreement envisages several functions. Having received payments in pursuance of the agreement, they can not deny having rendered the services mentioned therein. No prima facie strong case has been made for waiver of deposit of duty(Para 5).

    Pre-deposit ordered.

  • STO 2006 CESTAT 759
  • C&F Agency: The elements required for adding to the service tax is restricted to the amounts received by them for carrying on the services of C & F only. The other elements like loading, unloading charges are not required to be added.

  • STO 2006 CESTAT 592
  • Service Tax: Clearing and Forwarding Agents: Taxable value: Revenue proceeded for inclusion of loading expenses, cost service charges and godown charges. The impugned orders do not give reasons as to why they are required to be added. Chennai Bench in a similar case in Sangamitra Services Agency v. CCE, Chennai-IV - STO 2005 CESTAT 178 held that these elements are not required to be added in the value of the tax to be charged for payment. Trade Notice No. 59/99 dated 4-10-1999 and DGST clarification issued in October 2003 and further relies on the Board's letter MF(DR) F. No. 341/11/98-TRU dated 23-8-1999 and Rule 6(8) of Service Tax Rules, 1994 which interpretation would clearly show that these elements are not required to be added in the Service Tax value.(Para 2).

    Pre-deposit waived and stay granted.
     

  • STO 2006 CESTAT 580
  • C&F Agent : The appellant are only procuring orders for their principal and were booking orders on payment of commission, is not denied by the Revenue in the matter. Not covered under the category. Demand set aside.

  • STO 2006 CESTAT 407
  • C&F Agent : such booking of order received by Indenting Agent cannot be brought within the ambit of C & F Agent Services.

  • STO 2006 CESTAT 631
  • Stay: C&F Agent: The appellants are not required to bear the charges of principal discharging his rental, telephone charges, salary of the employees, transportation charges etc. Based on decision of granting waiver in another case. In this case also, the full waiver granted.

  • STO 2006 CESTAT 127
  • Stay: C&F Agent: The Service Tax, in terms of the relevant proviso to Section 67, is only on the Commission and not on the other elements received by the principals.

  • STO 2006 CESTAT 773
  • C&F Agent : Appellant is admittedly a consignment stockist, who is actively involved in "Clearing & Forwarding Operation" by taking responsibilities for the movement of goods right from the factory/warehouse of the principal up to the stage of delivery to the buyers in one or many ways. There is, therefore, no doubt, that the appellant is fully covered within the tax framework, being a "Clearing & Forwarding Agent" engaged in relation to "Clearing & Forwarding Operations.

  • STO 2006 CESTAT 811
  • Service Tax: C & F agent service: Scope and liability: Appellants nature of operations is fully covered under the definition of "Taxable Services". For instance, as per the terms and conditions, the appellant is concerned with the distribution as well as transportation of the material besides storage in their magazine and forward supplies to the customers as the case may be. Prima facie, the appellant has been rendering the taxable service of clearing and forwarding agent. (Para 2).
    Pre-deposit ordered.

  • STO 2006 CESTAT 1213
  • Stay : Activity of loading and unloading is not a part of service rendered as C & F agents. Also time bar issue being contested. However, in view of offer given by Counsel, appellants directed to make pre deposit accordingly.

  • STO 2006 CESTAT 503
  • C&F Agent: Booking orders for the principal by an agent on payment of commission basis would not amount to providing services as "clearing and forwarding agent.

  • STO 2006 CESTAT 484
  • Service Tax: C&F Agent: Liability on out of pocket expenses: In terms of Rule 6(8) of the Service Tax Rules 1994, the Service Tax is leviable only on remuneration or commission paid to the C&F Agent by their clients. The out of pocket expenses are not their profit or commission. Hence, the same is not includible in terms of the Rules. They have also discharged the services of 'Del Credere' agent on which also tax is not leviable. The appellants had relied on the ratio of this Bench on 'Del Credere' services being not taxable as rendered in the case of Raja Rajeshwari Intl. Polymers (P) Ltd. v. CCE, Bangalore-III -  STO 2005 CESTAT 347 (Para 2,4).

    Stay petition allowed.
     

  • STO 2006 CESTAT 480
  • Service Tax: Clearing and Forwarding Agent: Stay: The appellants have made out a strong case for non-levy of penalty as all the facts had been disclosed to the Revenue and there was no suppression of facts in the matter. The show cause notice was issued after a considerable time. The appellant's plea of the non-deductible services had not been scrutinized by the authorities below.(Para 3).

    Stay application allowed.
     

  • STO 2006 CESTAT 492
  • C&F Agent: Stay: As the decision of the Tribunal relied upon in the impugned order is over ruled and the agreement with Raymond Ltd. shows that applicants are selling agent and working on commission basis, prima facie, the applicant had a strong case in their favour. Therefore, the pre-deposit of whole of the amount of service tax and penalty are waived.

  • STO 2006 CESTAT 625
  • Service Tax: Clearing and Forwarding Services: Taxable value: The appellants had produced before the authorities many pieces of evidence including the invoices, etc. Now they have produced Chartered Accountant's Certificate to contest the includability of certain elements in the C & F category. The observation of the Commissioner that they have not produced any evidence does not appear to be correct. There is a clear violation of principles of natural justice. Ultimately, the matter is required to be remanded(Para 4).

    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 530
  • C&F Agent Services: The pre-delivery inspection carried out by the appellant is explained as in view of the appellant's responsibility for products support. Even if pre-delivery inspection has an aspect of clearing or forwarding, it does not satisfy the essential requirements of that service. Such inspection is only to ensure that the product is without defects and is as per the order. Such activity not covered under C&F Agent Service. Hence, demand set aside.

  • STO 2006 CESTAT 842
  • Service Tax: Clearing and Forwarding Agent: Scope and liability: Commissioner(Appeals) relied upon the decision in the case of Prabhat Zarda Factory v. CCE, which is now overruled by the decision of the Larger Bench in the case of Larsen & Toubro Ltd. v. CCE , Chennai, vide Final Order No. 1-9/06-LB., reported in STO 2006 CESTAT 66 . The issue regarding scope of clearing and forwarding agent came before another Bench of the Tribunal in the case of Medpro Pharma Pvt. Ltd. v. CCE, Chennai, reported in 2006 (3) STR 355 (LB) and the Larger Bench defined the scope of Clearing and Forwarding Agents and held that even assuming that the appellants are also keeping custody of the goods, inspite of this, they cannot be treated as clearing and forwarding agents. In this case, there are 5 agreements having different conditions. It is a fit case for reconsideration by the Adjudicating Authority after taking into consideration the above decisions of the Larger Bench and conditions of the agreements.(Para 5,6).
    Appeal disposed of by way of remand.

  • STO 2006 CESTAT 137
  • Service Tax: C & F agent service: Scope and tax liability: The view taken by the Tribunal in the case of M/s. Prabhat Zarda Factory Ltd. is overruled by the Larger Bench of the Tribunal in the case of Larsen & Toubro Ltd. v. CCE, Chennai, reported in STO 2006 CESTAT 66 Larger Bench of the Tribunal held that mere procuring and booking orders for the principal by an agent on payment of commission would not amount to providing service as Clearing and Forwarding Agent.(Para 2).

    Appeal allowed.

  • STO 2006 CESTAT 879
  • Service Tax: C & F Agent: Scope: Penalty: The issue whether only when the clearing & forwarding agent carries out both clearing and forwarding operations, the levy of service tax will be attracted as held by the Tribunal in the case of Kulcip Medicines Pvt. Ltd. v. C.C.E., Delhi-III and in the case of Vaman Pharma Pvt. Ltd. v. C.C., Bangalore - STO 2005 CESTAT 221 is now resolved by the Larger Bench of this Tribunal. Further, Section 80 of the Finance Act provides that "no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure". Penalty set aside(Para 5).

    Appeal disposed off.

  • STO 2006 CESTAT 178
  • C&F Agent: Consignment Agent: As per the contract, the respondents are appointed as consignment agent and the consignment agent is included in the definition of 'clearing and forwarding agent'.

  • STO 2006 CESTAT 670
  • Service Tax: C & F agent services: Taxable value: Freight and other expenses cannot be treated as gross income of clearing and forwarding agent. The appellant produced copy of agreement and other documents in support of their claim. Commissioner (Appeals) in the impugned order noted that appellant had not produced any proof in support of their claim. As the appellant produced the copy of agreement and other documents which shows the terms of payment. It is a fit case for reconsideration by the adjudicating authority(Para 3,4).

    Appeal disposed of by way of remand.

  • STO 2006 CESTAT 177
  • C&F Agent: service of a broker does not come within the category of clearing and forwarding.

  • STO 2006 CESTAT 139
  • C&F Agent: The case was made on the basis that the appellant was procuring orders. The finding in the impugned order is also to the effect that the appellant was procuring orders. Neither the notice nor the finding has relied on the handling of goods in any manner as the basis for the demand. Hence, demand set aside.

  • STO 2006 CESTAT 821
  • Service Tax: Clearing and forwarding agent: Scope and liability: A perusal of the agreement between the parties makes it clear that the appellant neither clears nor forwards the lubricants in question. Instead, it makes arrangement for storage and sells the lubricants. In this factual situation, prima facie, it is erroneous to treat it as a clearing and forwarding agent. The demand is not sustainable.(Para 3).
    Stay application allowed.

  • STO 2006 CESTAT 724
  • Service Tax: Clearing and Forwarding Agent: Scope and liability: This issue has been settled by the Larger Bench of the Tribunal in the case of L&T Ltd. v. CCE reported in STO 2006 CESTAT 66 In this case the Larger Bench of the Tribunal over-ruled the decision of Prabhat Zarda Factory (Supra) and held that activity of procurement of purchase order for the principal on the commission basis is not covered under the scope of Clearing and Forwarding Agent Service.(Para 2).
    Appeal allowed.

  • STO 2006 CESTAT 694
  • C&F Agent: Commission Agent: Stay: Appellant working only as commission agent. Commissioner confirmed demands on the basis of decision of Tribunal in Prabhat Zarda which is over ruled by the Larger Bench in Medpro Pharma Pvt.Ltd. Matter required to be reconsidered. Waiver granted and Matter remanded.

  • STO 2006 CESTAT 74
  • C&F Agent : "C&F Operations" cannot be dissected into "Clearing" and "Forwarding" as they fall in the common category and hence all or any of the services of that category will be services provided by a "C&F Agent", connected with "C&F Operations" and would attract levy of service tax under Section 65(23).

  • STO 2006 CESTAT 168
  • C&F Agent: Valuation: There is an existence of separate contract entered into service as C & F agents and also to collect separate transportation charges and such charges cannot be added in the service tax paid by C & F agents.

  • STO 2006 CESTAT 66
  • C&F Agent: Mere procuring or booking orders for the principal by an agent on payment of commission basis would not amount to providing services as "clearing and forwarding agent", within the meaning of the definition of that expression under Section 65(25) of the Finance Act, 1994.

  • STO 2006 CESTAT 154
  • C&F Agent: The appellants reimbursed BPL for all the services rendered to them including the service of C & F agents. The department contended that the service tax is liable to pay on the entire amount reimbursed by the appellants to BPL. Demand not sustainable.

  • STO 2006 CESTAT 663
  • Service Tax: Delcredere Agents: C & F agents: Scope and liability : Unless the assessee is found to have physically dealt with any goods of their customer, service rendered by the former to the latter against commission cannot be taxed as "Clearing & Forwarding Agent's Service". In support of this argument, learned Counsel has relied on the following decisions:(a) Palani Andavar Mills Ltd. v. CCE, Coimbatore reported in STO 2005 CESTAT 341 (b) Raja Rajeshwari Intl. Polymers (P) Ltd. reported in STO 2005 CESTAT 347 The decision cited second above, has been relied on to argue that "Delcredere Agent" would not come within the purview of "Clearing & Forwarding Agent's".(Para 1,2).

    Stay allowed and pre-deposit waived.

  • STO 2006 CESTAT 775
  • Service Tax: Clearing and Forwarding Agent's service: Scope and liability: Appellants had not handled the goods at all and that their activity was limited to canvassing purchase orders from the market and transmitting the same to manufacturers and rendering allied services to the manufacturers without physically handling the goods. This activity would not fit into the definition of "C&F Agent's service". After the introduction of "Business Auxiliary service" for the purpose of levy of Service Tax, the appellants have got themselves registered with the department.The nature of service rendered by the appellants since July, 2004 is no different from the one they had been rendering prior to that. Hence demand of tax on the appellant's service, dubbing it as C&F Agents service, is illegal. They relied on the Tribunal's decision in Commissioner of Central Excise, Kanpur v. Ram Shree Steels Pvt. Ltd. STO 2005 CESTAT 283], wherein the respondents, whose activity was the same as that of the present appellants, were held not liable to pay Service Tax as "Clearing and Forwarding Agents". (Para 1).
    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 657
  • Service Tax: Clearing & Forwarding Agent's Service: Scope and liability: The appellants were only canvassing orders for their customer against payment of commission and were not physically dealing with any goods. Tribunal's decision in Palani Andavar Mills Ltd. v. CCE, Coimbatore, STO 2005 CESTAT 341 wherein it was held that a C&F agent should physically deal with goods, in respect of which taxable service is rendered.(Para 1).

    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 169
  • Service Tax: Clearing and forwarding agents: Valuation: Waiver of pre-deposit: The activity of transportation or freight is an independent activity and its value cannot be added to the value of clearing and forwarding. Transportation or freight services were included in the Finance Act at a later point of time and hence it cannot have retrospective effect. Already there is a pre-deposit of Rs. 3.75 lakhs. As the issue is decided on legal question and is also supported by the judgment in the case of E.V. Mathai & Co. v. CCE, Cochin - STO 2003 CESTAT 11 the waiver for the balance amount is granted.(Para 2,4).

    Stay allowed and pre-deposit waived.

  • STO 2006 CESTAT 88
  • Service Tax: Clearing and forwarding agents: Taxable value: For the purpose of evaluating the services to work out the service tax, rule 6(8) is relevant in the present context and as per that provision, the value of the taxable service in relation to the services provided to a client for rendering services of clearing and forwarding operations in any manner shall be deemed to be the gross amount of remuneration or commission (by whatever name called) paid to such agent by the client engaging such agent. Prima facie, it appears that the amounts under the heads "freight forwarding and warehousing charges" were being collected by the appellant besides the remuneration. Whether these will fall under the expression remuneration, will be a debatable point.(Para 2).

    Pre-deposit ordered.

  • STO 2006 CESTAT 426
  • Service Tax: Del Credere Agent: Tax liability: The Tribunal in the case of Raja Rajeshwari Intl. Polymers (P) Ltd. v. CCE, Bangalore-III and Sreenidhi Polymers Pvt. Ltd. v. CCE, Bangalore-III reported in  STO 2005 CESTAT 347 and STO 2005 CESTAT 364 respectively, has held that prior to 1-7-2003, the said services cannot be held to be covered by clearing and forwarding services.(Para 1).

    Stay petition allowed.
     

  • STO 2006 CESTAT 451
  • Service Tax: Clearing and forwarding agent: Scope and liability: It was provided in the agreement between the parties that the appellant was required "to achieve the target fixed for procuring orders for the supplies to be made to various parties through them" and that the appellant "shall have also to assist the first party in follow up action of order so procured" and "also follow up realization of sale proceed from purchaser including in getting receipted challan of the material so supplied by the first party". The terms and conditions, therefore, indicated that not only orders were to be procured but supplies were to be effected through the appellant who was under an obligation to assist the supplier by taking follow up action of the order and to get "receipted Challan" of the material so supplied through the appellant. This is, therefore, not a fit case for total waiver of pre-deposit.(Para 5,6).

    Pre-deposit ordered.
     

  • STO 2006 CESTAT 56
  • Service Tax: Clearing and forwarding agents: Demand: The issue in dispute is covered against the applicants by the Tribunal's decision in the case of Coal Handlers Pvt. Ltd. v. CCE, Kolkata-I STO 2004 CESTAT 29 wherein it was held that the persons providing services on behalf of clients prior to loading of coal rakes viz. obtaining consent from coal companies, sanction from railway authorities, supervising loading of wagons, sending samples and assuring proper quality and quantities, formalities for freight payment etc. are covered within definition of clearing and forwarding agent. Although the appeal against the above order has been admitted by the Apex Court as seen from 2005 (190) E.L.T. A175 (S.C.), there is no stay of operation of the Tribunal's order. Therefore, no prima facie case for total waiver of pre-deposit can be made out by the applicant.(Para 2).

    Pre-deposit ordered.

  • STO 2006 CESTAT 629
  • Service Tax: Clearing and forwarding agents: Scope: Prior to 2003, there was no specific rule under the law that appellants services to be brought under Clearing and Forwarding category. Tribunal's order in the case of Commr. of Central Excise, Meerut v. Purushottam Industries Ltd. reported in STO 2005 CESTAT 159 which has held : "Respondents-assessee only procured orders and passed to the principal for execution - No evidence on record to show that they are directly or indirectly connected with clearing and forwarding operation - Service tax and penalty not imposable -Sections 65(25), 73, 76 and 77 of Finance Act, 1944".(Para 2).

    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 47
  • Service Tax: Clearing and Forwarding Agents: Demand: Appellant company has only procured the Orders from the customers and forwarded the same to the Principal Manufacturer and that the Principal directly supplied the goods to the customers. In view of this, prima facie the case has been made out in favour of the applicant/appellant company(Para 3).

    Pre-deposit waived.

  • STO 2006 CESTAT 18
  • Service Tax: Waiver of pre-deposit: Date of Show Cause Notice is 25-9-2003. For the period from 01-9-1999 to 31-3-2003, the Service Tax on C&F has already been paid. The Revenue has proceeded to include certain other charges which are not payable. Revenue was aware of all the facts and therefore appellant have strong case on the issue of time bar.(Para 3).

    Application for pre-deposit allowed.

  • STO 2006 CESTAT 519
  • Service Tax: Clearing and forwarding agent: Penalty under Section 76: The actual amount of Service Tax collected from their customers has been paid along with interest and penalties basing on the statement of the partner. The appellants had no mala fide intention in evading the Service Tax, but for want of awareness the payment was upheld. Presently the unit has been closed and no business activity is taking place due to financial constraints. Penalty amount reduced(Para 5,6).

    Appeal disposed off.

  • STO 2006 CESTAT 73
  • Service Tax: Clearing and forwarding agent: Scope: Tribunal has in Kulcip Medicines Pvt. Ltd. v. CCE, Delhi-III reported in STO 2005 CESTAT 389, the ratio of which was followed in Vaman Pharma Pvt. Ltd. v. CCE, Bangalore [2006 (1) S.T.R. 274 (Tribunal) = STO 2005 CESTAT 221. has taken a view that only when a clearing and forwarding agent carries out both clearing and forwarding, the levy will be attracted. (Para 6).

    We are unable to subscribe to this view for the reasons that follow. The nature of services for which the contract was entered into fell within the ambit of what is known as 'clearing and forwarding agent'. The clearing and forwarding agent, in our prima facie view, would encompass a variety of services and the services provider will provide such services depending upon the needs of the customers. It is not necessary to provide compulsorily all the types of services to a customer who may want only some of the services which are normally provided by a 'clearing and forwarding agent'. The customers' particular requirements will not change the meaning of the expression 'clearing and forwarding agent' provided the services fell within the category of services which are usually provided by "clearing and forwarding agents".(Para 8).

    Matter referred for the opinion of the Larger Bench:

  • STO 2006 CESTAT 882
  • Service Tax: Receiver of GTO services: Liability: Tribunal's decision in the case of L.H. Sugar Factories Ltd. STO 2004 CESTAT 73 laying down that even after the amendment, service availers are not liable to pay tax. The said decision of the Tribunal stands confirmed by the Hon'ble Supreme Court as reported in STO 2005 SC 277 CCE v. L.H. Sugar Factories Ltd. In as much as the issue stands decided by the above-referred decisions, the impugned order is set aside (Para 2).

    Appeals allowed.

  • STO 2006 CESTAT 707
  • Service Tax: Clearing and forwarding agents: Waiver of pre-deposit: Scope: Since they do not physically handle any goods, they are entitled to waiver in the light of Tribunal's order in Mahavir Generics v. CCEX, Bangalore, STO 2004 CESTAT 77 & Raja Rajeshwari Intl. Polymers Pvt. Ltd. v. CCE, Bangalore III, STO 2005 CESTAT 34. The decision in the case of Mahavir Generics considers the decision in Prabhat Zarda Factory (I) Ltd v. CCE, Patna, STO 2002 CESTAT 22, CBEC Circular No. 39/2/2002, dated 20-2-20022, which stipulates that agent must handle goods in order to be considered as Clearing & Forwarding Agent, which are relied upon by the Commissioner (Appeals) in the impugned order.

    Stay granted.

  • STO 2005 CESTAT 69
  • Service Tax: C & F Agent: Scope and taxability: It appears from the record that the only piece of evidence on which reliance was placed for holding that the appellant had rendered service as clearing and forwarding agent was the set of commission bills of the appellant, which showed that the appellant had claimed commission in respect of various goods sold to the parties shown in these bills. In none of the bills, which the appellant had submitted for charging its commission, mentioned about clearing and forwarding of the goods. Mere procurement of orders without anything more may not amount to clearing and forwarding of the goods. There is no material discussed in the impugned order, which can indicate the activity of clearing and forwarding of the goods.(Para 3).

    Pre-deposit waived.
     

  • STO 2005 CESTAT 151
  • Stay: Appellants prima facie do not come under the purview of service tax on clearing and forwarding agents. Requirement of pre-deposit unconditionally waived.

  • STO 2005 CESTAT 165
  • Service Tax: GTO services C & F Agent: Demand: First party had accepted the request of the second party and agreed to appoint the second party as one of the "consignee agents" for Ludhiana, etc. The expression "consignee agent" given here is a mis-type of "consignment agent" whose services are specifically included under the statutory definition of C & F agents. Hence the services obtained by M/s. Ranjitgarh Sales (P) Ltd. has become taxable.(Para 7). Amendment sought to validate levy and collection of service tax for the period between 16-7-1997 to 12-5-2000 in respect of services of goods transport operators and C & F agents. Service tax liability was to be discharged by the person availing the service so rendered. Thus for the period prior to 1-9-1999, service tax was payable by the receiver of the services. In this context recent judgment of Supreme Court in Commissioner of Central Excise, Meerut II v. M/s. L.H. Sugar Factories Ltd. and others STO 2005 CESTAT 345 ]} which had held that demanding service tax from the availer of the goods transportation service is non-maintainable.(Para 8).

    Revenue appeal dismissed.
     

  • STO 2005 CESTAT 145
  • Service Tax : Waiver of pre-deposit : The applicants were providing the transport service directly or indirectly to arrange the despatch of the goods and maintained records of receipt and despatch of goods. Therefore, prima facie Applicants are covered under the provisions of Clearing and Forwarding Agent and are liable for Service Tax.(Para 4).

    Pre-deposit ordered.
     

  • STO 2005 CESTAT 178
  • Stay : C&F Agent : Prima facie, this amount does not include the actual expenses incurred by the C & F Agent for and on behalf of his client and service tax is not leviable on such expenses. The test appears to be whether the amount spent for the clearing and forwarding operation would have been spent by the principal, had he not engaged a C & F Agent.

  • STO 2005 CESTAT 157
  • Service Tax: C & F agency: Waiver of pre-deposit: There is neither any sale nor any clearing or forwarding of goods involved in the services rendered by the appellants and that the nature of services rendered would be more appropriately covered as Business Auxiliary Services with effect from 9-7-2004 but not prior to that date under clearing and forwarding service.(Para 3).

    Pre-deposit waived.
     

  • STO 2005 CESTAT 227
  • Service Tax: C & F Agent: Scope: Tribunal in the case of M/s. L.H. Sugar Factories Ltd. v. Commr. of C.Ex., Meerut II reported in STO 2004 CESTAT 73 has held that the Service Tax is not payable by the service recipient. The ratio of the above judgment is equally applicable in this case.(Para 3).

    Stay application allowed.

  • STO 2005 CESTAT 13
  • Service Tax: Clearing and Forwarding Agent: Waiver of pre-deposit and stay: As per the provisions of Section 65 of Finance Act, Clearing and Forwarding Agent means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operation in any manner to any other person and including a consignment agent. Agreement entered by the applicant with M/s. Broadcast Equipment (India) Ltd. specifically mentions that they are to procure at Audio Video professional equipment and accessories from M/s. Dragon Capital (Hong Kong) Ltd. and these are to be delivered at the office of M/s. Broadcast Equipment (India) Ltd, at New Delhi. In view of the above terms and conditions of the contract, it is not a fit case for waiver of pre-deposit amount of Service Tax.(Para 5).

    Partial pre-deposit ordered.
     

  • STO 2005 CESTAT 221
  • Service Tax: C. & F. Agents: Scope and taxability: It is clear that the appellants do not engage in the activity of clearing. As per Board's Circular dated 20-4-2002, Para 10, "The C&F agent carries out all activities in respect of the goods right from stage of their clearances from the premises of the principal to its storage and delivery to the customers" The Tribunal, in the case of M/s. Kulcip Medicines (P) Ltd. v. CCE, Delhi-III - STO 2005 CESTAT 389, has held that the activities undertaken by the assessee therein (another Agent of CIPLA) would not fall under the category of "Clearing and Forwarding Agents" since both the activities have not been undertaken by the assessee.(Para 6).

    Appeal allowed.

  • STO 2005 CESTAT 44
  • Service Tax: C & F Agent: Tax Liability: What was enacted by Parliament under Section 116 of the Finance Act, 2000 was, inter alia, to make recipients of Clearing and Forwarding Service retrospectively liable for payment of Service tax on such service for the specified period 16-7-1997 to 16-10-1998. The Revenue cannot assume authority to collect such tax on such service from the service-recipient for any period beyond 16-10-1998. Thus nothing in Section 116 supports the Revenue's case.(Para 4).

    Revenue appeal dismissed.

  • STO 2005 CESTAT 29
  • Stay: Clearing & Forwarding Agent : C & F agent carries out all activities in respect of goods right from stage of their clearances from the premises of the principal to its storage and delivery to the customers. Appellants already paid certain amount at the time of investigation, treated as sufficient compliance.

  • STO 2005 CESTAT 54
  • Clearing and Forwarding Agent Service: Appellants were physically dealing with excisable goods; they were receiving the goods into their premises and marketing the same for and on behalf of the manufacturer. This activity of the appellants could be considered to be "Clearing and Forwarding".

  • STO 2005 CESTAT 47
  • Service Tax: C & F Agent: Tax liability: Appellants have only acted as a commission agent for M/s. Emco Ltd. procuring orders on commission of 5% of the selling price but they never handle the goods as the same are supplied by M/s. Emco Ltd. directly to the buyers.(Para 1).

    Pre-deposit waived.
     

  • STO 2005 CESTAT 12
  • Service Tax: Clearing and forwarding agent: Demand: The goods are sent by the manufacturer directly to the buyer. The appellant is only a commission agent, and receives commission from both or either side, for the service rendered by him as sales or buying agent. The role of the appellant clearly is not that of a clearing and forwarding agent.(Para 2).

    Pre-deposit waived.
     

  • STO 2005 CESTAT 211
  • Service Tax: Clearing & Forwarding Agency service: Demand: Separate payments were to be made for "commission" on sale as well as for other services. But the position of the appellant as well as his client was that no other service was rendered. The debit note dated 2-11-2001 would appear to support that contention rather than the contention of the Revenue that the service rendered was in connection with any transportation.(Para 6).

    Pre-deposit waived.

  • STO 2005 CESTAT 143
  • Service Tax: Waiver of pre-deposit: Applicant are not Clearing and Forwarding Agent, although they are referred to as C & F Agent in the agreement with M/s. Cipla for the reason that they only receive product manufactured or purchased or otherwise acquired by Cipla and store and dispatch(Para 1)

    Pre-deposit waived.
     

  • STO 2005 CESTAT 230
  • Service Tax: Clearing and forwarding agent: Waiver of pre-deposit: If the appellant was not concerned with the delivery of the goods to the buyers, there was no need for the appellant to indemnify the principal on account of any delay in deliveries, as contemplated in clause 12 of the agreement. Service tax is calculated on the entire amount of the commission and no effort has been made to apportion the commission having regard to the nature of the agency which involved procuring of firm purchase orders as well as assisting the customers in getting the delivery, and indemnifying the manufacturer in case of delay in deliveries. No effort has been made to bifurcate the nature of services under the agreement and to claim that the service tax could have been imposed only on a portion of the commission, which was attributable to clearing and forwarding activity. The applicant has failed to make out any case for waiver of pre-deposit. (Para 5,6).

    Pre-deposit ordered.

  • STO 2005 CESTAT 174
  • Service Tax: C & F agent: Liability of the Co-op. society: Whether a co-operative society and its members have separate existence. If it is one and the same, there is no question of provider of service and client. Even upon treating members of the co-operative society as separate entities, there is no justification for treating the co-operative society as providing clearing and forwarding services.The consignments for sale were brought by their owners to the premises of the co-operative society for auction. The appellant does not clear the consignment from its premises. After the sale, the goods are delivered to the buyer at the sales premises itself by the owner. Therefore, no forwarding also takes place. The issue remains covered by the decision of this Tribunal in the case of Mahavir Generic - STO 2004 CESTAT 77. Demand set aside(Para 4).

    Appeal allowed.
     

  • STO 2005 CESTAT 110
  • Service Tax: Waiver of pre-deposit: Board vide Circular dated 20-2-2002 clarified the position regarding the Service Tax imposed on C & F agent, and it is clarified that C & F agents were clearing the goods, store them and then forward the goods according to the instructions of the principal owner. The applicants are not clearing the goods or store them, therefore, prima facie the applicant had a strong case in their favour(Para 4)

    Pre-deposit waived.
     

  • STO 2005 CESTAT 159
  • Service Tax: C & F Agency: Demand: The Respondents are only procuring order and passing to the principal for execution. There is no evidence on record to show that the Respondents directly or indirectly connected with the clearing and forwarding operation.(Para 2).

    Revenue appeal rejected.
     

  • STO 2005 CESTAT 283
  • Service Tax: Clearing & forwarding agents: Scope and taxability: Respondents were only working as commission agents, being involved in the finalisation of sales transactions between the purchaser and the buyers. They were only getting commission. They neither handled the goods of the seller, nor they carried any clearing and forwarding operations.(Para 2).

    Revenue appeal dismissed.

  • STO 2005 CESTAT 222
  • Service Tax: Clearing & forwarding services: Demand: The gross amount mentioned in the relevant invoice is the taxable value inasmuch as the same was collected by the appellants from their clients for clearing and forwarding services. On perusal of the relevant provisions of Section 67 of the Finance Act, 1994 and Rule 6(8) of the Service Tax Rules, 1994 the department's view is justified.(Para 2).

    Pre-deposit ordered.

  • STO 2005 CESTAT 389
  • Service Tax: Clearing and Forwarding Agent: Scope: Demand: In terms of the contract with Cipla, delivery of the medicines was effected by Cipla to the appellant at Ambala and the appellant carried out further distribution. There was no clearance of the goods from Cipla's factory by the appellant. His job was that of a forwarding agent. Service becomes service of clearing and forwarding, only if, both clearing and forwarding are undertaken. Service tax is not attracted on clearing or forwarding charges when undertaken in isolation; but only when both these services are rendered together. As per Circular No. 37B Order No. 2/1/2002-ST, dated 20-4-2002 if C & F Agent carries out all activities in respect of goods right from stage of their clearance from the premises of the principal to its storage and delivery to the customers, tax would be attracted. Tribunal in the case of M/s. Mahaveer Generics, Bangalore held that the terms of the relationship was similar and the Tribunal held vide its order ST F. No. 12/04-NB(A), dated 27-4-2004 STO 2004 CESTAT 77 that no Service Tax was attracted.(Para 2,3).

    Appeal allowed.

  • STO 2005 CESTAT 218
  • Service Tax: Consignment agent: Liability: Appellants are liable to pay service tax being consignment agent of IPCL. Impugned order confirming the service tax on that count against the Appellants is upheld.(Para 2).

    Clearing and forwarding agent: in the case of Raja Rajeshwari Intl. Polymers (P) Ltd. v. CCE, Bangalore-III, reported in STO 2005 CESTAT 347 wherein it has been held that dealer agent do not falls within the purview of clearing and forwarding operation, as the goods are not directly or indirectly handled by him and no service tax is payable on the commission received by him on account of Del Credere Agency. Appellants are not liable to pay tax on the commission. (Para 3).

    Appeals disposed off.

  • STO 2005 CESTAT 68
  • Service Tax: C & F Agent: Scope and taxability: The definition of clearing and forwarding agent as provided under the Finance Act covers any person who is engaged in providing any service, either directly or indirectly connected with clearing and forwarding operations in any manner to any other person and includes a consigning agent. As per the terms and conditions of the agreement the applicants are responsible to receive the orders and thereafter to carry out all the co-ordination activities with Air/Transport/Railways for delivery of the goods to the customers. The said services are definitely comes under the expression the clearing and forwarding operation in respect of goods manufactured by the manufacturer. Further, Tribunal in the case of Prabhat Zarda Factory(India) Ltd. v. CCE reported in STO 2002 CESTAT 22 taking into consideration the similar terms and conditions of the agreement held that activity undertaken by assessee is covered under the definition of clearing and forwarding agent.(Para 18)

    Pre-deposit ordered
     

  • STO 2005 CESTAT 108
  • C&F Agent Service: As per Tribunal’s decision in Prabhat Zarda scope of this service is wide, scope of services rendered by respondent gives sharp clues to indicate that these were covered within the ambit of this service. Liable to pay tax. For examining the issue of limitation and provisions of section 80 matter remanded to Commissioner (Appeals).

  • STO 2005 CESTAT 365
  • Service Tax: Clearing and forwarding service: Demand: The said service has an indirect connection with the clearing and forwarding of goods from the appellants' factory to their buyers and hence would attract the definition of "Clearing and Forwarding Agent”. In the case of Prabhat Zarda Factory (India) Ltd. v. CCE, Patna STO 2002 CESTAT 22, service tax was held to be leviable on commission paid by the manufacturer to his agent whose responsibility was to procure orders and takes steps to improve market conditions for the manufacturer. The nature of service rendered by the brokers in the instant case is similar to the one rendered by the agent in the case of Prabhat Zarda Factory(Para 2).

    Partial pre-deposit ordered.

  • STO 2005 CESTAT 317
  • Service Tax: Refund: It is clear from the decision of the Supreme Court in the case of Gujarat Ambuja Cements Ltd. v. Union of India, reported in STO 2005 SC 734 that the constitutional validity of the validating provisions was upheld. Therefore, the service tax which was paid by the appellant will be deemed to have been paid under the validated provisions. The question of refund of service tax cannot, therefore, arise.(Para 5).

    Appeal dismissed.

  • STO 2005 CESTAT 261
  • C&F Agent : The respondents are receiving the goods from the Tea Companies and storing the same and subsequently tea is being sold by them. Liable to pay service tax as C&F Agent.

  • STO 2005 CESTAT 175
  • Service Tax: Clearing and Forwarding agent: Waiver of pre-deposit: The goods of the Members of the applicants' Society are received in the premises of the Society and sale is conducted by the Society on behalf of the Members in respect of such goods with an obligation on the buyer whose bid is accepted and confirmed by the owner of the goods to take away the goods from the premises of the Society. No clearing and forwarding activity was carried out in the process of sale of the goods of the Society.(Para 2).

    Pre-deposit waived.
     

  • STO 2005 CESTAT 303
  • Service Tax: C & F Agent: Demand: Definition is wide enough to cover the appellants within the scope of clearing and forwarding agent as they are rendering the services, of distributing and clearing the goods from Ranjitgarh Sales Pvt. Ltd. However, the appellants are situated in a remote village and they could not pay the service tax in time, penalty equal to service tax imposed on them requires to be modified.(Para 5).

    Appeal disposed off.

  • STO 2005 CESTAT 246
  • C&F Agent : The activity of supplying goods on consignment basis and getting them sold to customers through consignment agent was not within the purview of "Clearing and Forwarding" and hence service tax was not leviable thereon.

  • STO 2005 CESTAT 364
  • Service Tax: Clearing and Forwarding Agents / Del Credere Agent: Scope: Appellants produced evidence to show that they are not C&F Agents but are Del Credere Agents. The Commissioner has considered the Del Credere Agents to be C&F Agent. However, the Tribunal, after due consideration of the definition of Del Credere has held that they cannot be clubbed along with C&F Agents and no Service Tax is leviable on them as in the case of M/s. Raja Rajeshwari International Polymers (P) Ltd., by Final Order No. 126/2005, dated 20-1-2005 STO 2005 CESTAT 347. (Para 3).

    Appeal allowed.

  • STO 2005 CESTAT 197
  • Service Tax: Clearing & Forwarding Agent / Del Credere Agent: Scope and taxability: Waiver of pre-deposit: Appellants are 'Del Credere Agent' and not performing the business of 'Clearing & Forwarding'. The ratio of the Tribunal judgment rendered in the case of Raja Rajeshwari International Polymers (P) Ltd. Bangalore v. CCE, Bangalore - STO 2005 CESTAT 347 is applicable to the facts of this case.(Para 3).

    Pre-deposit waived.

  • STO 2005 CESTAT 347
  • C&F Agent: As per the Agreement entered between the appellant and M/s. IPCL, they indemnify M/s. IPCL against the default in payment of creditors. For this purpose, they receive commission at the rate of Rs. 250 per MT. Appellant acting as Del Credere Agent. Even though the appellant is a C&F Agent, every activity undertaken by him cannot be brought within the purview of C&F operations.

  • STO 2005 CESTAT 30
  • Service Tax: Waiver of pre-deposit: As per decision of the Tribunal in the case of Mahavir Generics v. CCE, Bangalore reported in STO 2004 CESTAT 77 appellants are only selling agent, and the amount already deposited is sufficient for hearing of the appeals.(Para 2).

    Pre-deposit waived.
     

  • STO 2004 CESTAT 79
  • Service Tax: C & F agent: Liability: Appellants are only clearing and forwarding agents for M/s. Cipla Ltd. and as such are not covered under the Service Tax in view of the law laid down in an identical case of STO 2004 CESTAT 77 wherein the Tribunal has taken the view that activity of service, by clearing and forwarding agent, does not fall within the ambit of Service tax.(Para 1).

  • STO 2004 CESTAT 100
  • Service Tax: Clearing and forwarding Agent: Demand: The lower authorities have confirmed the demands on this service user and not service provider. It is well settled by the case of STO 2004 CESTAT 73 that recovery action by invoking Section 73 of the Finance Act, 1994, for service tax not paid by users of transport services was not maintainable and provisions of Section 73 both as it stood on the date of issue of Show Cause Notice and also after its amendment by Finance Act, 2003 will not cover users availing services. Section 71A has not been referred to in Section 73, hence the plea that no machinery has been provided in collection of this service tax from the user availing such services, the recoveries as proposed cannot be upheld.(Para 3,4).

  • STO 2004 CESTAT 99
  • Service Tax: Activity of Del Craderes: Scope and liability: The activity of Del Creadere is similar to activity which was carried out in case of Prabhat Jarda Factory in procuring orders and in passing them to the principal for execution in lieu of commission. Appellants activity has later been brought under business auxiliary services. Therefore there is a scope for believing that the activity carried out by them did not fall within the C & F activity.(Para 2)

  • STO 2004 CESTAT 29
  • Service Tax: C&F Agent: Scope: The use of the expression "any" and "indirectly" in the definition of clearing and forwarding agent, is indicative of the fact that the scope of the services is quite wide. He is not only the person who is actually dealing with the goods, which has to be termed as clearing and forwarding agent, but even if the services are indirect and if the same are connected with the clearing and forwarding operations in any manner of the other persons, he would be covered within the scope of the said definition. The appellants in the instant case render their services in all the sections of pre load of the coal rakes i.e. obtaining consent on behalf of their customers, sanctions from the office of Executive Director - Rail Movement, supervising loading of the wagons, sending samples and assuring the proper quality and quantities, complying with the formalities relating to payments for freight. As such, it is quite clear that the appellant is covered by the definition of clearing and forwarding agent, as interpretated by the Tribunal in the case of M/s. Prabhat Zarda Factory (India) Ltd. v. Commissioner of Central Excise, Patna, STO 2002 CESTAT 22.(Para 5).

    Classification of overlapping services: The expression 'commission agent' has been explained by the Notification dated 20th June, 2003 reported in 155 E.L.T. N-171 [Notification No. 13/2003, dated 20-6-2003], vide Paragraph 2.1.3 it is clarified that C & F agents work on commission basis do not fall under the definition of 'Business Auxiliary Service', as they are substantially covered within the definition of C & F services. Further, under Section 65A of Finance Act, 1994, it is provided that in case of overlap, a service would be classified under the head, (a) which provides most specific description, (b) in case of a composite service having combination of different taxable services, the service which give them their essential character and (c) in case the test of (a) and (b) does not resolve, the service which comes earlier in the clauses of Section 65, i.e. the service that was subjected to service tax earlier.(Para 6).
    Appeal rejected.

  • STO 2004 CESTAT 77
  • C&F Service: Appellants are neither clearing any goods nor forwarding any goods. Products of the principal are supplied to the appellant on consignment basis and the appellant sells the products to the customers. Such an activity would not come within the service provided to a client by clearing and forwarding agent in relation to clearing and forwarding operation.

  • STO 2004 CESTAT 22
  • Service Tax: C & F Agents: Classification: Appellants were not acting as C & F agents but they were only providing Lube storage facility and this was supported by a letter dated 14-6-02 from IOCL which has not been considered by the authorities below, therefore matter remanded to the concerned adjudicating authority to examine and decide the issue afresh(Para 2,4).

    Appeal disposed off.

  • STO 2003 CESTAT 11
  • Transportation charges: C&F Agents: Separate contracts: Separate bills raised: Service tax only on remunerations received for C&F Agent.

    Refund: On going through the reason given by the Commissioner (Appeals) in the subsequent order with reference to the same facts and circumstances, no justification for levy of service tax on transportation charges. Accordingly, party is entitled to refund of the said amount subject to provisions of unjust enrichment.

  • STO 2002 CESTAT 12
  • Service Tax: Clearing & Forwarding Agent: Activity of allowing GSFC-ILC to use their Jetty and giving them storage facilities cannot make them Clearing and Forwarding Agents so as to attract liability to service tax.

  • STO 2002 CESTAT 22
  • C&F Agent: Even if the services are indirect, but the same are connected with the clearing and forwarding operations in any manner of the other persons, he would be covered by the definition of clearing and forwarding agent.

    Penalty on Director: When penalty has been imposed on company, there is no justification for imposition of separate penalty upon the Director.

  • STO 2001 CESTAT 207
  • Clearing & Forwarding Agent : Appellants appear to be undertaking the activities of clearing & forwarding agent and not merely acting as commission agent : Directions issued for partial pre deposit.

     

  • STO 1999 SC 7
  • Constitutional Validity: Provisions of Rule 2(d)(xii) and (xvii) of Service Tax Rules : Any action which is required to be taken is qua the assessee, namely, the person responsible for collecting the service tax which includes his agents.

    The tax is on the value of the services and it is only the person who is providing the service can be regarded as an assessee. The rules, therefore, cannot be so framed which do not carry out the purpose of the chapter and cannot be in conflict with the same. The provisions of Rule 2(d)(xii) and (xvii), insofar as it makes persons other than the clearing and forwarding agents or the persons other than the goods transport operator as being responsible for collecting the service tax, are ultra vires the Act itself. The said sub-rules are accordingly quashed.

     
     

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