TaxTMI 
TaxTMI 
2011 (11) TMI 229
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....hat they are not C&F agent for M/s. Bajaj Auto Ltd. inasmuch as they do not satisfy the definition of C&F agent as appearing in Section 65(25) of the Finance Act, 1994. It stands argued before us that none of the ingredients of C&F agent exists in their case inasmuch as they are neither clearing the goods from the factory nor forwarding the same to the buyers, under the instructions of their principal. They are acting as independent agents for selling the goods of their principal and the relationship between them and their principal is business relation. They are selling the goods on their own and are neither receiving despatch orders from their principal nor they offer despatch or arrange despatches as per the direction of the principal. A....
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....o. 43/7/97. TRU dated 11.7.97, relied upon by the appellant, they cannot be held to be excluded from the ambit of C& F agent. He has observed that it is not essential for a person to perform all the activities specified in the said circular of the Board and if any one or two of such activities are not performed, he will be considered as C&F agent. 3. We have considered the submissions made by both the sides. The definition of clearing and forwarding agent, has been the subject matter of the dispute for quite a long time. The Larger Bench of the Tribunal in the case of Larsen & Toubro Ltd. v. CCE [2006] 4 STT 231 (New Delhi - CESTAT) has considered the definition of C&F agent and has held as under:- "'Clearing and Forwarding Agent' means a....
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....he effect that agent shall make its own arrangement for suitable adequate premises with the requisite facilities for the supply and sale of the spare parts supplied by the principal. Clause 4 is to the effect that the agent shall place requisition from time to time for the various spare parts and principal shall supply the same at its own cost of Transportation and delivery of Agent. Clause 6 is to the effect that the principal shall deliver the goods to the Agent's premises at its own cost and risk. After the delivery, the Agent shall be solely responsible for any damage or loss caused to the said goods or shortages that may arise after such delivery. The agent is to be paid the commission based on sales target achieved by them. It is the ....
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....per the requisition made by the appellants. The same are being sold by the appellants to individual customers under the cover of their own sales invoices. All these facts clearly demonstrate that the appellants are acting as independent businessman and are selling the products of M/s. Bajaj Auto Ltd. to their own clients without the interference of their principal. 6. The activities of C& F agent to the contrary are altogether different activities as is clear from the Board's circular clarifying the scope of C & F agent that a clearing and forwarding agent receives the goods from the factory of the principal, warehouse the same, receives the despatch orders from the principal, arranges despatch of the goods as per the directions of the pri....
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....use notice dated 28.2.2005 is clearly barred by limitation, having been raised beyond the normal period of limitation. The lower authorities have not referred to any evidence of suppression or mis-statement, with intent to evade payment of duty on the part of the appellant so as to justifiably invoke the longer period of limitation. Inasmuch as the issue involved is interpretation of provisions of law, the appellants cannot be settled with any allegation of mala fide so as to justifiably invoke longer period or so as to impose penalty upon them. We further note that demand stands raised against the appellants by picking the figures of commission from their balance sheet, in which case, the appellants cannot be held guilty of any suppression....