2008 (6) TMI 14 - AT - Service Tax

Whether services of Del-credre agency is covered under the category of Clearing and Forwarding (C&F) agency service and leviable to service tax - commission agency service came to be covered under business auxiliary services w.e.f. 1.7.03 only - appellants were rendering two types of services and they have paid service tax correctly on Clearing & Forwarding Agent services and they are not liable to pay service tax on Del Credre agency service prior to 1.7.03 - appeal is allowed

Summary

Issues:
1. Whether services provided by the appellant as a Del-credre agency are covered under Clearing and Forwarding (C&F) agency service and leviable to service tax.

Analysis:
The case involved a dispute regarding the classification of services provided by the appellant as either Clearing and Forwarding (C&F) agency service or Del-credre agency service for the purpose of levying service tax. The appellant had entered into two separate agreements in 1999 with a company, one for Consignment Stockist Agent and another for Del Credre agent. The first agreement required the appellant to maintain facilities for stocking and selling the product, while the second agreement involved procuring orders and ensuring payment collection. The appellant contended that they had been paying service tax on the Consignment Stockist services but not on Del-credre agency services, citing various judgments supporting their position.

The show cause notice issued proposed to levy service tax on the services provided as a Del-credre agent, resulting in confirmation by the lower authorities and imposition of penalties and interest. The appellant argued that there were two distinct types of services being rendered under separate contracts, and they had been correctly paying service tax on the Consignment Stockist services. They relied on judgments to support their claim that Del-credre agency services should not be classified under C&F agency services.

The Tribunal analyzed the agreements and observed that the Joint Commissioner and Commissioner (Appeals) had failed to recognize the distinction between the two contracts. The agreements clearly outlined the responsibilities and obligations of the Consignment Stockist services, while there was no mention of Del-credre agency services in the agreements. The Tribunal found that the appellant was appointed as a Consignment Stockist Agent and not as a Del-credre Agent, based on the terms and conditions specified in the agreements.

The Tribunal noted that the appellant had correctly paid service tax on Clearing & Forwarding Agent services and was not liable to pay service tax on Del Credre agency services before a specific date. Considering the agreements and the nature of services rendered, along with the relevant judgments cited by the appellant, the Tribunal allowed the appeal, providing consequential relief to the appellant.

In conclusion, the Tribunal held that the services provided by the appellant as a Del-credre agency were not covered under Clearing and Forwarding (C&F) agency service for the purpose of service tax, based on the specific terms and conditions outlined in the agreements and the understanding of the appellant regarding the tax liability on the services rendered.