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TMI Blog2011 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... d R/R and were paying freight in advance on behalf of their customers at Ferozabad and were making payment to principal coal agent on behalf of coal buyers. The case made out against the appellants is that as the service of Clearing & Forwarding Agent was taxable with effect from 16-7-1997, and that the appellants had provided such services to their clients during the period 2000-01 to 2003-04 as per balance sheet and the same was liable to service tax under the category of Clearing & Forwarding Agent. On pointing out, the appellants had deposited the service tax under protest. Therefore, show-cause notices were issued proposing the confirmation of demand and appropriation of amount deposited by the appellants and imposition of penalty under sections 75A, 76, 77 & 78 of the Finance Act, 1994. Show-cause notices were adjudicated and demands along with penalty were confirmed against the appellants. Aggrieved from the said orders, the appellants are before us. 2. Learned Advocate for the appellants submits that the appellants are engaged in the activity of making payment of price of coal for various persons and arrange transportation of the same by paying the freight and arranging in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving dispatch order from the principal; (d) Arranging dispatch of goods as per the directions of principal by engaging transport on his own or through authorised transporters of the principal; (e) Maintaining records of receipt and dispatch of goods and the stock available at the warehouse; (f) Preparing invoices on behalf of the principal. On going through the definition as well as the Board circular as stated hereinabove we observe that financing of purchase of coal is not included as service of Clearing & Forwarding Agent and it is a fact on record that the appellants are engaged in the activity of financing only. 8. The case law relied upon by the learned D.R. are not relevant to the facts of this case as in the case of Coal Handlers (P.) Ltd. (supra) services undertaken are the persons providing service on behalf of client prior to holding of coal i.e., obtaining consent of coal companies to load the coal makes, sanction from railway authorities, supervising of loading of wagons, sending samples and assuring proper quality and quantity, arranging freight payment etc. which were held to be covered under the definition of Clearing & Forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming demands under the category of "Clearing & Forwarding Agent". 9. As we are having judgment before us on similar set of facts, we are bound to follow the same as held by the Bombay High Court in the case of Mercedes Benz India (P.) Ltd. v. Union of India 2010 (252) ELT 168 wherein the Hon'ble Bombay High Court has observed as under:- "17. We are not happy to observe but constrained to say that one must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned Single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter should be referred to a Larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of our Constitutional scheme, we hold it to be the duty of the judges of the courts and members of the Tribunals to make the law more predictable. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decision." 19. Having said so, the impugned view taken by the Tribunal by no means can be said to be correct approach. Needless to mention that if the Tribunal wanted to differ to the earlier view taken by the Tribunal in the identical set of facts, the judicial discipline required reference to the Larger Bench. One Co-ordinate Bench finding fault with another Co-ordinate Bench is not a healthy way of dealing with the matters. In this view of the matter, we have no option but to set aside the impugned judgment passed by the Tribunal on 20th November, 2009 incorporated at Exh.A to the petition. 20. In the result, impugned judgment dated 20th November, 2009 is quashed and set aside. Appeal, is restored to the file of the Tribunal with direction to hear and decide the same afresh by a reasoned order following principles of natural justice. If the Tribunal decides to take view contrary to the view holding the field, then in that event it is expected of the Tribunal to pass appropriate order leading to reference to a Larger Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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