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2012 (10) TMI 161 - AT - Service TaxClearing and Forwarding Agent - assessee contested to fall under the category of Cargo Handling Service - service tax demand, penalty u/s 78, 76, 75A & personal penalty u/s 81 - period 2001-02 to 2003-04 - Held that:- Under the agreement dt.30.03.2001, M/s. SAIL had appointed the Appellant as their Consignment Agent and authorized them to receive the stocks from railway yard on their behalf, stack it in the stock yard, maintain the stock in the stock yard properly and load in the trucks of consignees of Nepal after preparation of necessary documents for and on behalf of M/s. SAIL. The activities were not limited to just loading and unloading of the cargo but also involves stacking which included marking/painting, loading into customers vehicle for delivery with weighment and necessary documentation. Also, the Appellant were required to carryout the stock verification during storage of the said goods at the said stockyard. A comparison between activities carried out by the Appellant and the ones listed in the Circular dt. 11.07.1997 was issued by the CBEC , it is clear that the Appellant's services rendered to M/s SAIL fall under the scope of clearing and forwarding service. Besides, under the said agreement the Appellant represent M/s SAIL before all concerned relating to the movement of said goods, as their agent. As decided in COMMISSIONER OF C. EX., BANGALORE-I Versus MAHAVEER GENERICS [2009 (11) TMI 104 - KARNATAKA HIGH COURT] the activities which the consignment agents were required to discharge had been narrated in the said agreement namely, the principal to supply the product from any of its depots in loan licence to the agent on a consignment basis through a stock-transfer note for sale by him, as the agent of the principal. Thus the relationship between M/s SAIL and the Appellant is admittedly that of a principal and agent, which is also amply clear from various terms and conditions of the agreement. The service of consignment agent has been specifically included in the scope of Clearing and Forwarding Agent service. Admittedly, the Appellant carry out all these activities as an agent of M/s SAIL for movement of the goods and hence the Appellant render the service of a clearing and forwarding agent - against assessee. Invoking extended period of limitation - Held that:- The longer period of limitation is invokable as the Appellant had not discharged their service tax liability inspite of being made liable to discharge all statutory liability of a consignment agent as stipulated at clause 9.4 of the Consignment Agency agreement with M/s SAIL besides they suppressed the taxable value & intentionally evaded payment of service tax stating the service rendered by them as cargo handling service - there is an element of mis-declaration by the Appellant all along claiming that their services a export services and the amounts of sale proceeds were received in convertible foreign currency and not in the Indian Rupees and also suppression of the taxable value received from M/s SAIL inspite of repeated reminders from the Range Officer, thus the demands issued to them are not barred by limitation and extended period of limitation is rightly invoked - against assessee. Only personal penalty imposed on the Director, Shri Atul Kumar Jain u/s 81 is not maintainable as oth the authorities below have not recorded specific involvement of Shri Atul Jain in the short/non payment of the service tax warranting a personal penalty against him except holding that he was overall incharge of the affairs of the Appellant Company.
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