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2022 (11) TMI 266 - AT - Service TaxClassification of services - contract with Gujarat State Electricity Corporation for the work of timely payment of railway freight and to undertake all such steps to ensure that freight pre-paid coal wagons reach the GSECL plant site and in return they were receiving commission - whether the services provided by the appellants were classifiable under the category of Clearing & Forwarding Agent Service or under Business Auxiliary Service? - demand alongwith penalty u/s 78 - HELD THAT:- The present case involved mix question of law and facts. The learned Commissioner (Appeals) decided the matter relying on the Tribunal’s decision in the case of COAL HANDLERS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-I [2004 (5) TMI 5 - CESTAT, KOLKATA] wherein it was held that the identical services are classifiable under clearing and forwarding agent service. Since this very judgement which is sole basis of the Commissioner (Appeals) order which has been set aside and party’s appeal was allowed by the Hon’ble Supreme Court, it is opined that since the identical facts and law point is involved, the learned Commissioner (Appeals) has to reconsider the matter in the light of the change of legal position between the Tribunal’s decision in Coal Handlers and the Apex Court decision in M/S. COAL HANDLERS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, RANGE KOLKATA – I [2015 (5) TMI 249 - SUPREME COURT]. Since the facts are also need to be compared and verified between this case and the case of Coal Handlers, the matter should be remanded back to the Commissioner (Appeals) to decide afresh in the light of Hon’ble Supreme Court judgement in the case of Coal Handlers - appeal allowed by way of remand.
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