2012 (10) TMI 911 - AT - Service Tax

CESTAT rules in favor of appellant on service tax issue, determining services under 'business auxiliary service'

RK. PALIWAL Versus COMMISSIONER OF CENTRAL EXCISE, KANPUR

RK. PALIWAL Versus COMMISSIONER OF CENTRAL EXCISE, KANPUR - 2012 (26) S.T.R. 567 (Tri. - Del.) Issues:1. Confirmation of service tax against the appellant for the period 1-9-1999 to 9-7-2004.2. Imposition of penalties under Section 76, penalty under Section 75, and penalty under Section 77 of the Finance Act, 1994.3. Classification of services provided by the appellant as 'clearing & forwarding agent services'.4. Contesting Show Cause Notices (SCNs) issued by the Revenue.5. Dispute on limitation and the impugned order.6. Registration under 'business auxiliary service' w.e.f. 1-9-2004.7. Tribunal's decision in the case of Hanuman Coal Co. v. CCE, Kanpur.8. Relief based on registration under 'business auxiliary service'.9. Limitation plea.10. Tribunal's decision in the case of Kavery Coal Suppliers v. CCE, Kanpur.Analysis:The judgment by the Appellate Tribunal CESTAT, New Delhi addressed the issue of confirming service tax against the appellant for the period 1-9-1999 to 9-7-2004. The appellant was providing services of coal merchants, financing coal purchases for customers, making payments to principal coal agents, and preparing pre-paid railway receipts. The Revenue believed these services fell under 'clearing & forwarding agent services' and issued SCNs proposing service tax confirmation. The appellant contested, arguing they were not clearing & forwarding agents but provided financial assistance for goods supply. The lower authorities confirmed demands and penalties, which were upheld by the Commissioner (Appeals), leading to the present appeal.The Tribunal noted the appellant's subsequent registration under 'business auxiliary service' from 1-9-2004, accepted by the Revenue. The Tribunal referenced the case of Hanuman Coal Co. v. CCE, Kanpur, where it was held that financing coal purchases and arranging transportation did not constitute clearing & forwarding agent services. The Tribunal found the appellant's activities similar to Hanuman Coal Co., thus ruling they did not provide clearing & forwarding agent services. Additionally, the Tribunal considered the registration under 'business auxiliary service' as a ground for relief, similar to the Hanuman Coal Co. case.Furthermore, the Tribunal noted the limitation plea and cited the case of Kavery Coal Suppliers v. CCE, Kanpur, where a similar issue was deemed not covered by the definition of clearing & forwarding agent. Relying on the decisions in the aforementioned cases, the Tribunal set aside the impugned order and granted relief to the appellant. The judgment emphasized that the appellant's services did not fall under the category of clearing & forwarding agents based on legal precedents and the nature of the activities conducted.