2015 (9) TMI 53

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....t.13.5.2005 all are passed by Commissioner (Appeals), Coimbatore. As the issue involved is common in all three appeals, they are taken up together for disposal. 2. The short issue relates to demand of service tax on the commission received by the appellants under Clearing & Forwarding Agency Service for the period September 1999 to March 2004. The adjudicating authority confirmed the demand and also equal penalty of under Sections 78 & 76 and also under 75A and 77 of the Finance Act. The LAA upheld the demand and penalty except setting aside Section 78 penalty. Hence the present appeals. 3. Heard both sides. Ld. Advocate submits that appellants have rendered the service as commission agents as per Explanation (a) of Section 65 (25) of the....

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....the paper book. 5. After hearing both sides, the short in this case relates to service tax demand is classifiable under Business Auxiliary Service on commission agent or clearing and forwarding agent service.  We have perused the relevant agreements entered into by the appellant with their principal manufacturer. In the case of agreement dt.23.4.2003 entered into by M/s. Sabarey Enterprises, we find that clause 7, 19 clearly stipulates that appellants to market and sale of the goods as per the value fixed by the principal manufacturer. As per clause (8) of the agreement, the appellants are entitled to a commission of 5% on the remittance amount. It is evident from the definition of "commission agent" provided under Section 65 (19) of ....

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....ur view, the Mahavir Generics Order has clearly brought out the distinction between Clearing & Forwarding Agents and Consignment Agents. A Clearing & Forwarding Agent normally arranges the despatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal. In other words, he does not have the right to sell the goods. This is the subtle distinction between C & F Agent and the Consignment Agent. In the present case, the Consignment Agent sells the goods and gets a commission. In the Larson & Toubro case, in para 9.2, the functions of the Clearing & Forwarding Agent are furnished. It has been held that a Commission Agent engaged to procure orders and not entrusted w....