2007 (4) TMI 95

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....02, the appellant was called upon to show cause as to why service tax of about Rs. 3.4 crores should not be paid in relation to service rendered by the agents. The allegation was that consignment agents were clearing and forwarding agents. The period of demand was 16-7-1997 to 31-8-1999. The notice alleged that in regard to the service of the agents, the recipient was liable to tax in terms of Rule 21(d). 3. The appellant contested the demand and contended that the service of a consignment agent did not fall in the category of clearing and forwarding and therefore, the demand under that head was not sustainable. It was also submitted that for the period upto 15-9-98, the provider of service was liable to pay and not the recipient. The ap....

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....vice. Reference in this connection is made to para 26 of the Commissioner's order where the Commissioner has noted as under "I find that two opposite views of the CEGAT/CESTAT are available on the issue of taxability of consignment agents i.e. the cases of Prabhat Zarda Factory and Mahavir Generics. Hon'ble Supreme Court in the cases of Liberty Oil Mill Pvt. Ltd. v. CCE [1995 (75) E.L.T. 13 (S.C.)] and Novopan India Ltd v. CCE [1994 (73) E.L.T. 769 (S.C.) = 1994 (6) J.T. 80] have issued guidelines for interpreting the taxing statute. As per these guidelines, in case of ambiguity or doubt in an exemption provision, the same will be resolved in favour of the revenue and not in favour of the assessee. I feel that the CEGAT's decision in the....

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.... far as it relates to period from 16-10-1998 to 31-8-1999 is not time barred under Section 73 of the Act." 9. The contention of the learned Counsel for the appellant is that it is well settled that when there is difference of opinion in judicial bodies, the assessee could not be faulted for holding either of the views. It is being pointed out that in such a case, failure to comply with the procedural requirement of law cannot beheld as resulting from mala fides but from a bona fide belief that tax was not attracted. Reliance in this connection is placed on the decision of this Tribunal in the case of CCE v. Wonderax Laboratories (I) Pvt. Ltd. reported in 2005 (186) E.L.T. 427. 10. The learned Joint CDR would, however, contend that the....