TMI Blog2011 (11) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... nd imposed is set aside. Further, demand for the period April, 2001 to March, 2002, raised by a show cause notice dated 28.2.2005 is barred by limitation. Since issue involved is of interpretation of provisions of law, the appellants cannot be settled with any allegation of mala fide so as to justifiably invoke longer period or so as to impose penalty upon them. - Decided in favor of assessee. - ST/1810 OF 2010 - ST/609 OF 2011 - Dated:- 28-11-2011 - MS. ARCHANA WADHWA, MATHEW JOHN, JJ. Shekhar Vyas for the Appellant. R.K. Gupta for the Respondent. ORDER Ms. Archana Wadhwa, Judicial Member Demand of Service Tax of Rs. 1,43,698/- stands confirmed against the appellants on the ground that during the period April, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has been appointed as consignment agent of M/s. Bajaj Auto Ltd. to sell their spare parts in the market. The appellate authority has also observed that the appellants are at liberty to appoint the special agent within the State of Rajasthan at their own cost and the appellants shall sell the products of the principal at the price fixed by the Principal and commission to them was to be fixed by the principal on the basis of sales target achieved by the agent. The appellate authority has also observed that in the invoices issued by the appellants, the word consignment agent of M/s. Bajaj Auto Ltd. have been printed indicating that they are the consignment agent of M/s. Bajaj Auto and as such they get included in the definition of C F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Receiving the goods from the factories or premises of the principal or his agents; (b) Warehousing these goods; (c) Receiving despatch orders from the principal; (d) Arranging despatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal; (e) Maintaining records of the receipt and despatch of goods and the stock available at the warehouse; (f) Preparing invoices on behalf of the principal. 4. We have scrutinised the agreement entered into between the appellants and M/s. Bajaj Auto Ltd. The preamble of the agreement clearly suggest that the appellant is being appointed as consignment agent for the State of Rajasthan for the purpose of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er documents relating to the business clearly state that he is consignment agent of the principal. 5. According to the above terms and conditions of the said agreement it clearly shown that though the appellant has been termed as consignment agent by the principal, the relation between the appellant and M/s. Bajaj Auto Ltd. and all the conditions are to safeguard brand name of M/s. Bajaj Auto Ltd. from being mis-used. The appellants are independent persons and had liberty to sell products to their clients, without any interference and directions from their principal. By selling the products at the MRP fixed on the same, they earned the commission from M/s. Bajaj Auto Ltd., which is related to their sales quantum. It is also seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /premises on his own and sells the goods to the customers as if he is the owner of the goods. The above facts are clear from the invoices being raised by the appellants in his own name. Even otherwise, the clauses of the agreement very clearly show that the appellant is doing business with M/s. Bajaj Auto Ltd. and not acting as C F agent. For the above reasons, we hold that demand against the appellant by treating them as C F agent is not justifiable and same is accordingly, set aside. 7. Our above view is supported by decision of Punjab and Haryana High Court in the case of Kulcip Medicines (P.) Ltd. (supra) which was upheld by the Hon'ble Supreme Court when the appeal filed by the Revenue was dismissed. 8. Though we have held in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period of limitation. Declaration in balance sheet or declaration to other government authorities like Sales-tax authorities cannot absolve an assessee from suppression for the purpose of section 11A of the Central Excise Act, 1944 unless the information is disclosed to Central Excise authorities in returns filed with them or through other means. In this matter, I rely on the decision of the Apex Court in the case of Usha Rectifier Corpn. (I) Ltd. v. CCE 2011 (263) ELT 655 wherein it was held that extended period for issuing demand under section 11A can be invoked through relevant information was disclosed in the balance sheet of the assessee. 12. In the facts of this case, when the demand is not sustainable on merits, there cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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