2008 (2) TMI 208

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....know about the CESTAT orders dated 27.04.2004, in the case of M/s. Mahavir Generics Vs. CCE, Bangalore- 2004 (170) E.L.T. 78 (Tri.-Del.) by which it was held that the services of consignment agents cannot be charged to Service Tax as C&F Agent. The appellants were functioning as commission agents for some of the manufacturers of steel pipes. They get the steel pipes and tubes on consignment basis, stock them in their premises and sell the products to their customers. In view of the above decision of the CESTAT they claimed the refund of the Service Tax and penalty paid by them. But the lower authority rejected their refund claim on the ground that the appellants cannot be treated as Commission Agent. Therefore, they approached the Commissio....

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.... alone discharges sales tax burden. The appellant is not concerned with receipt of the goods from the manufacturer and also does not take any instructions from the principal. They are independent selling agents. Unlike in the case of C&F Agents, where the goods vest with the principal only, who issues invoices, pay sales tax etc., the appellants are independently handling the goods, issuing invoices etc., and do not take any instructions from the supplier. In terms of agreement, the appellants are merely commission agents. The service tax on commission agents was introduced w.e.f 10.09.2004. Since the period of dispute is prior to that date the appellant could not be brought under the head of commission agents. There is no demand on this gr....

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..... The learned Departmental Representative relied on the following decisions. (a) Super Poly Fabrics Ltd. Vs. CCE, Ludhiana - 2006 (4) STR 595 (Tri.-Del.) (b) Commissioner of Central Excise, Chandigarh  Vs.  Adhunik Steels Ltd.- 2006 (4) STR 542 (Tri.-Del.) 9. The learned Advocate distinguished the facts of the above cases from those of the present appeal. In the above cases it was submitted that the assesses were actually appointed as consignment agent which is included in the definition of C&F Agent service. But in the case of the appellant the facts are different. They are nearly selling agents do not render any of the clearing and forwarding agents service and therefore the decision of the above cases cannot be applica....

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...., I find the same is entitled "consignment agreement".  In terms of the agreement the appellant is appointed as selling agent w.e.f. 28.08.2002 to sell on consignment basis galvanized steel tubes/MS Steel Tubes and Pipes. The Principal has agreed to pay commission to the appellant as may be mutually agreed from time to time. From the agreement one can not conclude that the appellant is a C&F Agent. In the Larsen and Toubro case in Para 9.2, the activities of the C&F Agent have been enumerated in the following manner. (a) Receiving the goods from the factories or premises of the principal or his agents; (b) Warehousing these goods; (c) Receiving despatch orders from the principal; (d) Arranging despatch of goods as per the d....