TMI Blog2011 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment that the appellants were providing services of coal merchants which were classifiable under the service of "Clearing Forwarding Agent" (as per classification issue in CBEC Circular No. 159/01/03-CE-4, dated 10-12-2003 and provision of section 65(25) of Chapter 5 of Finance Act, 1994. The appellants are engaged in financing to prepare pre-paid 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other person and includes a consignment agent". Further, as per CBEC Circular No. 37B No. 2/1/2002-ST, dated 20-4-2002, "Clearing Forwarding Agent normally undertakes the following activities: (a) Receiving goods from the factories or premises of the principal or his agents; (b) Warehousing these goods; (c) Receiving 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding Agent. This Tribunal has, further, observed that the appellants are now registered under "Business Auxiliary services" and in such a situation the Revenue cannot contend that prior to such registration they were providing services of Clearing Forwarding Agents. The Tribunal set aside the order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring not less than legal propriety from the basis of judicial procedure. If one thing is more necessary in law than any other thing, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Accountability v. Union of India [1992] 4 SCC 97; and State of Tripura v. Tripura Bar Association [1998] 5 SCC 637. 19. In Rajasthan Public Service Commission v. Harish Kumar Purohit [2003] 5 SCC 480, this Court held that a bench must follow the decision of a Co-ordinate Bench and take the same view as has been taken earlier. The earlier Bench of the Co-ordinate Bench is binding upon any latter Co-ordinate Bench deciding the same or similar issues. If the latter Bench wants to take a different view than that taken by the earlier Bench, the proper course is for it to refer the matter to a Larger Bench." 11. Considering the fact, that Co-ordinate Bench of this Tribunal in the case of Hanuman Coal Co. (supra) has also arrived at a decision and since we are also of the view that the decision taken by the Co-ordinate Bench of this Tribunal is a correct view. Hence, the request for adjournment of the learned D.R. is rejected. 12. We find that the issue has already been settled in favour of the assessee by holding that the activity undertaken by the appellants in these cases is not covered under the category of "Clearing Forwarding Agent". Therefore in these appeals also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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