TaxTMI 
TaxTMI 
2008 (4) TMI 31
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....ny services so as to incur the liability to pay service tax. 2. The factual background leading to the said question may briefly be noticed. Appellants herein entered into an agreement with Gas Authority of India Ltd. (GAIL) titled 'Consignment Stockistship Agreement'. 3. Inter alia, on the premise as to why they should not be asked to pay 'services taxes', a show cause notice was issued on the appellant on 20.10.2003. Cause was shown by it saying that no service is being provided by it as a clearing and forwarding agent of GAIL. An order in original was passed by the Deputy Commissioner, Central Excise on 17.3.2004 directing payment of service tax with interest as also penalties as demanded under the show cause notice. ....
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....h activities on the part of the appellant, it was urged, being not incidental to the main purpose for which it was appointed as a stockist agent, the impugned judgment cannot be faulted. 7. Before we embark upon the rival contentions of the parties, we may notice the definition of 'clearing and forwarding agent' as also 'business auxiliary service' as contained in Section 65(19) and Section 65(25) of the Act, which read as under : "65(19) "business auxiliary service" means any service in relation to" (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the ....
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....agiri and Ors. [1995 Supp.(2) SCC 33] , the Supreme Court in regard to interpretation of the clause stipulating the payment of money as advance and not earnest money provided for in the Sale Deed opined : "The nomenclature or label given in the agreement as advance is not cither decisive or immutable." 10. In Assam Small Scale Ind. Dev. Corp. Ltd. and Ors. v. J.D. Pharmaceuticals and Anr. [2005 (8) SCALE 298 = (2005) 13 SCC 19], on the decisiveness of the nomenclature of the agreement entered into between the state corporation and small scale industrial unit, opined: "The expressions 'principal' and 'agent' used in a document are not decisive. The nature of transaction is required to be determined on the basis of the su....
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.... and records of the case and observe that the issue involved is non-payment of Service Tax by the appellant. The appellant has contended that levying of Service Tax on amount received as commission for procuring orders for another person is not legal. Under Section 65(25) "C&F Agent" has been defined as any person who is engaged in the providing any service, directly or indirectly connected with clearing and forwarding operation in any manner to any other person and "C&F agent" includes consignment agent. The appellant has themselves admitted that they were procuring orders for M/s. GAIL. Since during the relevant period appellant was providing services to M/s. GAIL so service tax has been correctly demanded from the....
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....t (Emphasis supplied) in relation to clearing and forwarding operations, in any manner. In the present case, the appellant is admittedly a consignment stockist, who is actively involved in "Clearing & Forwarding Operation" by taking responsibilities for the movement of goods right from the factory/warehouse of the principal upto the stage of delivery to the buyers in one or many ways. There is, therefore, no doubt, that the appellant is fully covered within the tax framework, being a "Clearing & Forwarding Agent" engaged in relation to 'Clearing & Forwarding Operations'." 17. The agreement is titled as "Consignment Stockistship Agreement". Appellant has various jobs to perform thereunder. It does not arrange for a....