TMI Blog2013 (12) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to excise/service officers as is apparent from the letter. No other statutory provision has been brought to our notice which authorizes the CBEC to issue advisories to service tax providers, academically interpreting provisions of the fiscal legislation, including of the Act. Be that as it may. In any event, the letter dated 10.12.2003 has not explored the contours of clearing and forwarding agent service either in terms of Section 65(25) or of the taxable service enumerated in Section 65(105)(j). The scope of clearing and forwarding agent service as identified by the contemporaneous executive construction set out in Board Circular dated 11.7.97 nor in the subsequent Board Circular dated 20.4.2012, issued by express invocation of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plants such as the Indraprastha Power Generation Co. Ltd., Haryana Power Generation Corporation Ltd, National Thermal Power Corporation, and to other coal confirming industries like Nepa Paper Mills, Panki Fertilisers Works and others. The range of services provided by the appellant company, inter alia include a follow-up activities on behalf of consumers by way of liaison between Collieries and Railways, monitoring and witnessing of the loading and movement of coal; coordinating receipt of documents; organizing sampling etc. and associated activities. 3. In response to the show cause notice, the appellant company clearly pleaded that it did not handle the physically; that there was no priority of contract between the appellant and the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency is defined in Section 65 (25) of the Finance Act, 1994 as meaning any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent. Section 65(105)(j) enumerates this taxable service as any service provided or to be provided to a client by Clearing and Forwarding Agent in relation to clearing and forwarding operations, in any manner. 6. In Prabhat Zarda Factory (India) Ltd. vs. C.C.E., Patna - 2002 (145) ELT 222 (Tri-Kol.), a Division Bench of this Tribunal observed that the definition of Clearing and Forwarding Agent was wide and included any the service even if provided indirectly. In a subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal; (e) Maintaining records of the receipt and dispatch of goods and the stock available at the warehouse; and (f) Preparing invoices on behalf of the principal. 8. In a subsequent Circular dated 20.4.2012, the Board clarified that normally, a Clearing and Forwarding agent receives goods from the factories or premises of the principal or his agents, stores these goods, dispatches these goods in terms of orders received from the principal or owner, arranges transport, etc. for the purpose and prepares invoices on behalf of the principal. According to Revenue , the essential characteristic for any services to fall in the category of C F agent, is that the relationship between the service provider and the receiver should be in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Only clearing activities provided would not attract service. 11. In Commissioner of Central Excise, Panchkula vs. Kulcip Medicines (P) Ltd. -2009 (14) STR 608 (P H), the Punjab and Haryana High Court held that to constitute the taxable service of clearing and forwarding agent both services, of clearing and forwarding must be provided. The High Court decision Kulcip Medicines (P) Ltd. and the decisions in Coal Handler Pvt. Ltd. and in Prabhat Zarda Factory (India) Ltd., overruled in Larson Toubro Ltd., were considered in C.S.T. vs. Shah Coal Pvt. Ltd. - 2013 (32) STR 568 (Tri-Mumbai). The Tribunal in Shah Coal Pvt. Ltd., reiterated the scope of Clearing and Forwarding agency service, as explained in the Board Circular dated 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respective consumer/buyers, the Board had examined the representations and concluded that the mode of functioning of coal merchants falls within clearing and forwarding agents and is liable to service tax, irrespective of whether the coal merchants are working as agents of buyers or sellers, in terms of definition of clearing and forwarding agents . 14. We are not persuaded that this letter amounts to a Board Circular, in terms of Section 37B of the Central Excise Act, 1944. Section 37B authorizes the Board, where it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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