2011 (9) TMI 352 - AT - Service Tax

Commission-based Order Procurement Not Taxable as Clearing & Forwarding Agent Services

The Tribunal held that procuring orders for a principal on a commission basis does not constitute services of a clearing and forwarding (C & F) agent ... Activity coming under C&F agent to make it liable to service tax - activity of procuring of orders for the principal on commission basis - As decided in the case Larsen & Toubro Ltd. vs. CCE, Chennai [2008 -TMI - 34632 - CESTAT, CHENNAI] which clarifies the scope of clearing and forwarding agent, it stands held that mere procurement of orders on commission basis and not entrusted the work of clearing and forwarding of the goods would not get covered under the said category - respondents in the present case are only procuring orders for their principal and are not dealing with the goods at all and thus are not liable of Service tax - Hence held that Appeal of the revenue is rejected. Issues:- Whether procuring orders for the principal on a commission basis falls under the category of C & F agents' service and is liable to service tax.Analysis:The appeal revolved around determining if the activity of procuring orders for the principal on a commission basis would be classified as a service falling under the category of clearing and forwarding (C & F) agents, thus making it subject to service tax. The Commissioner (Appeals) concluded that since the appellants were solely procuring orders on a commission basis without being involved in the actual clearing and forwarding operations of goods, they could not be considered as C & F agents. The Revenue, however, argued that the definition of clearing and forwarding agents under section 65(25) of the Finance Act, 1994 encompassed any person engaged in providing services related to clearing and forwarding operations, including consignment agents who act as intermediaries in the sale process. The Revenue contended that receiving a commission for facilitating the transmission of goods between the seller and purchaser qualified as a clearing and forwarding agent service.The Tribunal referred to a previous decision by a larger bench in Larsen & Toubro Ltd. vs. CCE, Chennai, which clarified the scope of clearing and forwarding agent services. The Tribunal highlighted that merely procuring orders on a commission basis without being responsible for the actual clearing and forwarding of goods did not fall under the category of C & F agents. This stance contradicted an earlier decision in Prabhat Zarda Factory Pvt. Ltd. vs. CCE, which had deemed procurement/booking by an agent on a commission basis as providing clearing and forwarding agent services. The Tribunal's decision, supported by the High Court of Punjab & Haryana in CCE, Jalandhar vs. United Plastomers, upheld the interpretation that mere procurement of orders did not constitute C & F agent services.The Revenue attempted to rely on the judgment of the Karnataka High Court in CCE, Bangalore-I vs. Mahaveer Generics, where storing and forwarding goods were involved, but the Tribunal found this case not directly applicable to the present scenario. Similarly, the decision in CCE, Ludhiana vs. Singhania Chemicals Agency, which considered consignment agents selling goods on behalf of principals as falling under C & F agent services, was deemed irrelevant to the case at hand. The respondents in the present case were solely involved in procuring orders for their principal and not handling the goods directly. Consequently, the Tribunal found no grounds to overturn the Commissioner (Appeals)'s decision, leading to the rejection of the Revenue's appeal.