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2019 (10) TMI 538 - AT - Service TaxNon-payment of service tax - C & F Agent services or not - appellant have been doing business of consignment commission agent - demand of service tax alongwith interest and penalty - Suppression of facts - extended period of limitation - HELD THAT:- The appellants have been appointed as selling commission agents and they sell the goods received from the principal under their name and their own invoices and are also paying the Sales Tax/CST on the same. Further, the appellant receives commission as a percentage of the sales done by them. The said activity carried out by the appellant does not fall in the definition of “Clearing and Forwarding Agent” because the appellants are not clearing and forwarding agency. A person to fall in the definition of “Clearing and Forwarding Agent” the assesse undertakes both clearing and forwarding operations whereas in the present case, it has not been established by the Revenue that the appellants are carrying both the operations and therefore in view of the decision relied upon by the appellant in the case of Carryfast Agencies Vs CCE [2017 (4) TMI 705 - CESTAT NEW DELHI], the appellant did not fall in the definition of “Clearing and Forwarding Agent Service”. Time Limitation - HELD THAT:- The period in dispute is from 01.04.2002 to 31.03.2005 and the SCN was issued on 26.07.2006 and the Revenue has not brought anything on record to show that appellant indulge in any fraud, mis-statement, collusion or suppression of fact with intent to evade duty rather the appellant was under a bona fide belief that the activity undertaken was that of a selling commission agent on which no Service Tax is payable on the basis of certain decisions rendered by the Tribunal during the relevant period - Therefore, the extended period of limitation cannot be invoked in the present case and the entire demand is barred by time. The impugned order is not sustainable on merit as well as on limitation - Appeal allowed - decided in favor of appellant.
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