2005 (6) TMI 7 - AT - Service Tax

Tribunal grants relief to appellant in service tax dispute, clarifies tax liability for clearing and forwarding agents.

The Tribunal allowed the appeal, setting aside the demand for service tax and granting relief to the appellant. The appellant's classification as a ... Clearing and forwarding agent – Mere distribution of goods delivered at their premises by the manufacturer, not liable to service tax as ‘Clearing and Forwarding” Issues:1. Appellant's classification as a clearing and forwarding agent for service tax purposes challenged.2. Interpretation of the contract terms between the appellant and the principal.3. Comparison with a similar case involving another C&F agent of the same principal.4. Dispute over the applicability of service tax on the appellant's services.5. Analysis of the definition of taxable service under Section 65(105) of the Finance Act, 1994.Analysis:1. The appellant contested the classification as a clearing and forwarding agent for service tax purposes, arguing that they only carried out further distribution of medicines manufactured by the principal. The appellant emphasized that they did not clear goods from the principal's factory but acted as a forwarding agent. The appellant highlighted the requirement for both clearing and forwarding activities to be undertaken for service tax to apply, citing a CBEC Circular to support their position.2. The terms of the contract between the appellant and the principal were scrutinized. It was noted that the appellant received the medicines at their premises from the principal and did not engage in the clearance of goods. The Tribunal established that the appellant did not meet the criteria of clearing and forwarding as per the agreement, leading to the conclusion that the demand for service tax was not sustainable.3. Reference was made to a previous case involving another C&F agent of the same principal, where the Tribunal had ruled in favor of the agent, highlighting similarities in the terms of the relationship. The appellant relied on this precedent to strengthen their argument against the applicability of service tax.4. The Departmental Representative contended that once the appellant was acknowledged as a C&F agent, they could not dispute the nature of services rendered. However, the Tribunal emphasized that not all services provided by a C&F agent fell within the scope of the levy, specifically limited to clearing and forwarding operations.5. The Tribunal analyzed the definition of taxable service under the Finance Act, 1994, emphasizing that the levy applied only to services 'in relation to clearing and forwarding operations.' It was clarified that the relationship between the service provider and receiver should resemble that of principal and agent for the services to qualify as clearing and forwarding. Based on the factual findings and the terms of the agreement, the Tribunal allowed the appeal, setting aside the demand for service tax and granting relief to the appellant.