TaxTMI 
TaxTMI 
2019 (5) TMI 5
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....in the present appeal the appellant had entered into a tripartite agreement with M/s. Adani Global Private Ltd., Singapore (AGPL in short) and M/s. Adani Exports Ltd., Mumbai (AEL in short) for supply of 5,00,000 MTs of steaming coal at USD 73.00 PMT CNF FO Ennore Port, India; that apart from the selling price the appellant is collecting other charges under the head Suppliers Administrative charges of Rs. 100/- PMT from TNEB; that in respect of supply of bulk Urea, prilled Urea etc., to M/s. Madras Fertilizers Ltd., Chennai (MFL in short), the appellant is required to identify the overseas suppliers and negotiate the prices with them; that bulk urea is imported by the appellant and thereafter supplied to MFL; that in respect of both the above imports, the appellant enters into a High Sea Sale (HSS) agreement; in the case of MFL, MFL arranges for the clearance of goods from Customs, the clearing expenses like Customs duties, clearing charges, port-cess, demurrages etc. are borne by MFL which are paid directly to the Customs/C&F agents; full payment towards cost of documents comprising FOB value, LC opening charges are paid by MFL; that, apart from the FOB value, the appellant also c....
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....tentions of the Ld. Advocate during hearing could be broadly summarized as below: * During the disputed period (from 10.09.2004 to 20.03.2007) the appellant had only indulged in trading transactions in respect of purchase and sale of coal to TNEB. * TNEB floated tenders for supply of coal and these tenders were accepted by the appellant. * The tripartite agreement dated 09.06.2005 signed between the appellant and AGPL (foreign vendor/seller) and AEL (foreign Vendor's agent) had only treated the appellant as the buyer. The very preamble to the agreement treated AGPL as the seller and the appellant as the buyer. * Under Clause 9 to the agreement, AEL was to act as an agent of the foreign seller, AGPL. Their work was to co-ordinate with various agencies at the discharging port and ensure collection of the cargo value from TNEB. * The "price for the sale of coal had been expressly contemplated under clause 8 of the tripartite agreement and it was only in the nature of "purchase and sale" and between two principals, ie. the buyer and the seller. * The "administrative charges" mentioned in the invoices of the appellant were actually the trading margin earned by the appe....
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.... Nevertheless, the SCN dated 23.03.2009 is beyond the normal period. Therefore, the department cannot plead lack of knowledge. Further, prerequisite for invoking extended period of limitation is fraud, suppression, evasion or wilful non-disclosure with an ill-intention to evade payment of service tax. Mere non-disclosure cannot result in invoking of extended period of limitation. * The appellant also entered into a high sea sale agreement on 10.01.2006 with TNEB. Clause 7 of that agreement mentions "sale price" of USD 62.97, wherein TNEB was referred as "purchaser" and the appellant as the "seller", etc. She also relied on many decisions of various for a. 6. Per contra, Ld. DR Shri A. Cletus while supporting the findings of the Commissioner, also contended interalia that the procurement of steaming coal was always for and on behalf of TNEB; that the appellant acted as an agent/representative of TNEB and MFL right from the beginning; that the high sea sale agreement dated 16.06.2005 and 17.06.2005 points out that the purchase of coal in bulk by the appellant was for TNEB; that the same is the case while procuring urea for MFL; that the administrative charges for procurement of ....
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....ected from TNEB/MFL the purchase price apart from administrative charges for procuring coal/urea for its clients and nothing beyond it. The HSS agreement samples placed on record also mentions that the appellant should 'procure coal' in bulk for TNEB and the same situation continues even in the case of MFL. 7.3 Section 65 (19) defines Business Auxiliary Service (BAS), which reads as under:- "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 20[***] (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or 21[Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client;] 22[(v) production or processing of goods for, or on behalf of, the client;] (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to....
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.... however and on analysis of the agreement between the appellant (RSBCL) and the manufacturers/distilleries, (illustrated by the agreement dated 31-3-2008 with M/s. Khasa Distillery Company, Prop. Bhagat Industrial Corporation Limited), the conclusion that the ownership/property in liquor continues with the distilleries and has not passed to the appellant, is inescapable and compelling. The several clauses of the agreement clearly demonstrate this variety. On analysis of the several clauses of the agreement (referred to above), it is clear that the appellant was never the owner of the liquor nor had title in the liquor supplied to it. It was merely acting as the consignee of the goods belonging to the supplier/distilleries. Within the framework of the agreements, considered in the context of the taxable BAS, as defined in Sections 65(19) read with 65(105)(zzb) of the Act, the conclusion is uncontestable that the appellant was rendering the taxable BAS since the appellant was clearly marketing and providing services in relation to sale of goods (IMFL, Beer etc.) produced/ belonging to the distilleries. The situation of the appellant in the case on hand is more or less similar. 11....