TMI Blog2013 (7) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... forwarding operations- there is neither the conjunctive service of clearing and forwarding provided by the assessee nor either of the services of clearing or forwarding – following the decision of Larsen & Toubro Ltd. vs. CCE, Chennai reported in 2006 (6) TMI 3 - Appellate Tribunal, New Delhi) - appeal decided in the favor of the assessee - ST/08 of 2008 - FINAL ORDER NO.56452/2013 - Dated:- 7-5-2013 - G Raghuram And Sahab Singh , JJ. For the Appellant : Ms Rashi, Adv. For the Respondent : Shri M S Negi, DR. PER : Justice G. Raghuram Heard Ms. Rashi, ld. Advocate representing Sh. Bipin Garg, ld. Counsel for the appellant and Sh. M.S. Negi, ld. DR for the Respondent Revenue. 2. A Division Bench of the Punjab Haryana Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. The High Court ruled that the expression a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner contemplates only one person operating both as the clearing and the forwarding agent; and if a person has rendered service as forwarding agent without rendering any service as clearing agent he could not be considered to have rendered both services as a clearing and forwarding agent. 3. A full Bench of this Tribunal in Larsen Toubro Ltd. vs. CCE, Chennai reported in 2006 (3) STR 321 (Tri. LB) had occasion to consider whether an agent engaged only for procuring purchase orders for the vendor without engaging in any of the activities associated with clearing and forwarding operations would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt and despatch of goods and the stock available at the warehouse; and (f) Preparing invoices on behalf of the principal 4. The analysis of the facts in the appeal before it is set out in para 9.3. This Tribunal clearly ruled that where a person is engaged only for procuring purchase orders for the vendor on a commission basis but does not engage in any of the enumerated activities (of a clearing and forwarding agent), directly or indirectly; or where services are provided by a commission agent engaged to procure orders and not entrusted with the work of clearing and forwarding of goods, the service would not be a taxable service as defined in Section 65(105)(j) read with Section 65(25) which defines a clearing and forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tubes pay agreed amounts as commission, to the appellant. 6. From the above admitted and on record facts of the transaction, it is clear that the appellant in no manner engages in any of the six enumerated activities which constitute clearing and forwarding operations. It never has custody of the picture tubes; does not receive them from manufacturers of the tubes; does not warehouse the picture tubes; does not receive despatch orders from manufacturers of picture tubes which are directly forwarded to manufacturers of the TV sets; does not arrange despatch of goods as per directions either of the manufacturers of picture tubes or manufacturers of TV sets; nor engages transport on its own or through authorised transporters of manufacturers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice since 01.07.2003, but for the entire relevant period April 2001 to March 2004 i.e. including the period 01.07.2003 to 31.03.2004, Revenue proceeded on the basis that the assessee had provided clearing and forwarding agency service, contrary to the distinct classification w.e.f. 01.07.2003; the exemption Notification No. 13/2003 notwithstanding, the appellant was never proceeded on the basis that for the period subsequent to 01.07.2003, the services provided by it constituted Business Auxiliary Service, a taxable service-+. 9. On the aforesaid analysis, the appeal must succeed. Consequently, the order of the Commissioner (Appeals) Meerut-II, Noida dated 23.10.2007 confirming the adjudication order dated 15.03.2007 passed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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