TaxTMI 
TaxTMI 
2009 (7) TMI 518
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....ed upon page No. 17 to show that the agreement was between BPCL and the appellant. She submits that even though payments were linked to quantity and the loading and unloading charges were paid as per paragraph 19 of the agreement, that does not relate to clearing and forwarding activity. Therefore, following the decision of the Hon'ble High Court of Punjab & Haryana in the case of CCE v. Kulcip Medicines (P.) Ltd. [2009] 20 STT 264, the appellant is entitled to succeed in its appeal. 2. Ld. DR Shri Sunil Kumar brings to our notice that the agreement at page 17 has not been signed by BPCL. To this objection, Ld. Counsel replies that BPCL has signed at the end of the document and that cannot be doubted when the authorities all along have l....
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....nvoices issued by the Appellants for ascertaining the nature of their service as discussed below, I am of the view that from the Appellant's agreement with BPCL at pages 17 to 23 of the appeal paper book, it is clear that the Appellant's activity is not covered by the definition of C&F Agent's service. 5. On going through the Appellant's agreement with their client - BPCL at pages 17 to 23 of the appeal paper book, which mentions the Appellant as "Commission Operated Depot Operator" (COD operator) it is seen that— (a) Para 2 of the agreement mentions the Appellant's activity as - "operating lube godown for storage and selling of lubricants at A-61, SubhashNagar Bhilwara"; (b) Clauses 1, 2, 3, 4, 5, 16, 17 & 18 of para 2 of the ag....
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.... of para 2 mentions that if the minimum assured offtake of 40 kl. per month is not achieved, BPCL could be free to terminate this agreement. 5.1 From the above-mentioned features of 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. 5.1-1 The point of dispute is as to whether the above act....
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....ts storage and delivery to the customers." 6.1-1 The Board vide Clarification No. 2/1/02-ST, dated 24-4-2002 issued under section 37B of the Central Excise Act, 1944, made applicable to Service Tax by section 83 of the Finance Act, 1994, has clarified that the service of providing only storage facility and charging rent for that is not covered by the definition of "C&F Agent's service". 6.2 The Board in Circular No. 59/8/03-ST, dated 20-6-2003, while explaining the difference between a "consignment agent" (included in the definition of C&F agent) and "Commission agent" (whose services are covered by the definition of Business Auxiliary Services) has clarified that while a consignment agent's job is to receive the goods from the princi....