TMI Blog2009 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 - 168/2009-ST - Dated:- 15-5-2009 - Shri M. Veeraiyan, Member (Technical) and Shri P.K. Das, Member (Judicial) (Final Order No. 168/2009-ST dt. 15.5.2009 certified on 26.05.2009 in Appeal No. ST/227/2007) Shri O.P. Agarwal, CA for Appellant Shri A.K. Madan, SDR for Respondent Per P.K. Das: The relevant facts of the case, in brief, are that the appellant had been receiving blended tea from their principals, namely M/s. The Luxmi Tea 'Company Limited, M/s. Sancheti Tea Company, M/s. Gillanders Arbuthnot Co., etc. and storing the same in their go-down at Jodhpur. The appellant was selling tea at a price fixed by their principals and as mutually agreed upon. Show Cause Notice dated 19.4.2006 was issued proposing deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Super Poly Fabriks Ltd. vs. CCE, Punjab, reported in 2008 (10) STR 545 (SC). He also relied upon the following decisions of the Tribunal:- (i) CCE vs. Trade Tek Corporation - 2005 (68) RLT 214 (CESTAT-Mum.) =2006 (93) STR 598 (Tri.); (ii) Sreenidhi Polymers Pvt. Ltd. vs. CCE, Bangalore-III - 2005 (186) ELT 195 (Tri.-Bang.); (iii) Manickbag Industries vs. CCE - 2007 (82) RLT 805 (CESTAT-Ban.); (iv) CCE ST, Bangalore vs. Shah Polymers Ltd. Ors - 2007 (83) RLT 1038 (CESTAT-Ban.) He also contested the demand of tax on limitation. He submits that there is no suppression of facts with intent to evade payment of tax. He further, submits that the impugned order was passed on the basis of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Forwarding Agent'. Apart from that, the appellant is handling the consignments sent by the principals for un-loading, storing and delivery and also preparing the records, which are clearly a job of consignment agent. It is his submission that the activities of the appellant are nothing but of consignment agent and selling of the goods is additional job. He relies upon the decisions of the Hon'ble Supreme Court in the following cases: (i) Rajesh Kumar Sharma vs. UOI - 2007 (209) ELT 3 (SC) (ii) Amrit Papers vs. CCL, Ludhiana - 2006 (200) ELT 365 (SC) He also relied upon the decision of the Tribunal in the case of Vijay Enterprises vs. CCE, reported in 2007 (7) STR 339 (Tri.). He submits that the Larger Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio laid down thereunder. Thus, it appears that there were conflicting decisions of the Tribunal on the levy of tax in this situation. In the present case, the appellant is also undertaking incidental activities namely unloading, storing of goods etc. So, ratio of the Larger Bench decision would not apply here. But, we find force in the submission of the learned Advocate that demand of duty by show cause notice dated 19.4.2006 for the period October, 2000 to March, 2005 is barred by limitation. The main contention of the learned SDR is that the department has given wide publicity on levy of service tax and issued various circulars and trade notices clarifying scope of C F operations. It is contended that the appellants had not made any inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the result of bona fide belief that it was not liable to pay the tax and that extended period is not applicable in the facts of the case. 12. In view of what is stated above, the Appeal No. 25/06 of M/s. Bharat Aluminium Co. is allowed on the ground of limitation with consequential relief, if any." 6. In the present case, it is contended by the Revenue that the appellants failed to submit the Return and to observe the procedure. In our view, procedural failure on the part of the appellants was a result of bona fide belief. As such, demand of tax is barred by limitation and the impugned order is liable to be set aside. Accordingly, we set aside the impugned order on limitation without going into the merits of the case. Appeal is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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