2015 (1) TMI 904 - HC - Service Tax

Tribunal Decision Upheld: Service Tax Demand Dismissed for Clearing and Forwarding Services

The Court upheld the Tribunal's decision, dismissing Civil Miscellaneous Appeals against the Service Tax demand on the respondent for clearing and ... Clearing and forwarding (C & F) agent - Manufacturer dispatch the goods from their respective factories to the depots/marketing network/distribution network of the appellants. Selling/distribution agreement was entered into between the appellants and BMF on 01.04.1995. – whether the respondent would come within the definition of clearing and forwarding agent as contemplated in Section 65 of the Finance Act, 1994 - held that - The nature of duty mentioned on the side of the respondent has not been denied on the side of the appellant. Since Section 65 of the said Act deals with clearing and forwarding agent and since the respondent, has not done its duty as clearing and forwarding agent and it has simply done only the duty of distribution of things which have been sent by BMF to the distribution centre of the respondent, it is pellucid that the respondent; would not come within the definition of Section 65(25) of the Finance Act, 1994. For invoking Section 65 (105) of the said Act, one must act as clearing and forwarding agent and than only Service Tax can be imposed. The decision rendered by the Punjab Haryana High Court has been upheld by the Hon’ble Apex Court reported in [2009 (12) TMI 851 - SUPREME COURT OF INDIA] [Commissioner v. Kulcip Medicines (P) Ltd.]. Therefore, it is quite clear that for invoking Sections 65(25) as well as Section 65(105), a person should have acted as clearing and forwarding agent. - work done by the respondent is not resemblance to clearing and forwarding agent and it has merely distributed the things which have been sent by BMF to the distribution centre of the respondent at its. own cost and therefore, in any event the respondent cannot be mulcted with liability under the cover of Service Tax. - Decided against Revenue. Issues:- Interpretation of Section 65 of the Finance Act, 1994 regarding the definition of clearing and forwarding agent.- Liability to pay Service Tax for services provided.Analysis:The case involved Civil Miscellaneous Appeals against the Final Order passed by the Customs, Excise and Service Tax Appellate Tribunal. The appellant issued show cause notices to the respondent under Section 65 of the Finance Act, 1994, alleging liability for Service Tax related to clearing and forwarding services. The Tribunal found that the respondent did not perform clearing and forwarding duties but only distributed goods received from another company. The Tribunal set aside the previous orders confirming the demand for Service Tax. The key legal questions revolved around whether the respondent qualified as a clearing and forwarding agent under Section 65 of the Act and whether the services provided were taxable.The appellant argued that the respondent acted as a clearing and forwarding agent during the relevant period, justifying the Service Tax demands. On the other hand, the respondent contended that it did not fall under the definition of a clearing and forwarding agent as per Section 65 of the Finance Act, 1994. The respondent's role was limited to distributing goods received from another company at its own cost, not performing clearing and forwarding operations. The Tribunal's decision was based on this distinction, leading to the dismissal of the Service Tax demands.The Court considered the definitions outlined in Section 65 of the Act, emphasizing the necessity for a person to act as a clearing and forwarding agent to incur Service Tax liability. Referring to a precedent, the Court highlighted that Service Tax could only be imposed if the individual functioned as a clearing and forwarding agent. In this case, the respondent's activities did not align with those of a clearing and forwarding agent, absolving them of Service Tax liability.Ultimately, the Court upheld the Tribunal's decision, finding no error or illegality in its orders. The Court concluded that the substantial legal questions raised in the appeals lacked merit, leading to the dismissal of the Civil Miscellaneous Appeals without costs. The judgment clarified the interpretation of the Finance Act, 1994 regarding the definition of clearing and forwarding agents and the corresponding liability for Service Tax, providing a clear legal precedent for similar cases.