TMI Blog2014 (3) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... f services offered, any of which will bring the service providers in the tax net of this category. Moreover, in the process of forwarding operations - clearance stages may arise such as at octroi posts or subsequent transits - appellant is engaged in providing transport service as transporter and the initial service of temporary storage of the vehicles at or near railway sidings, which is eventually for a few days subject to availability of the rail rakes, will not render the appellant to fall under the category of ‘Clearing & Forwarding Agent' - Following decision of MEDPRO PHARMA PVT. LTD. Versus COMMISSIONER OF C. EX., CHENNAI [2006 (6) TMI 2 - CESTAT, NEW DELHI] - Decided in favour of assessee. - ST/91/07 - Final Order No. A/2353/2013-WZB/C-I(CSTB) - Dated:- 26-6-2013 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri Bharat Raichandani, Adv. For the Respondent : Shri V K Agarwal, Addl. Commissioner (AR) PER : Anil Choudhary This appeal arises out of Order-in-Appeal No. PJ/370/06 dated 14.12.2006 passed by the Commissioner of Central Excise Service Tax (Appeals), Pune-I. 2. The brief facts of the case are that the appellant is engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Tribunal in the case of Coal Handlers Pvt. Ltd. Vs. Commissioner of Central Excise, Kolkata-I- 2004 (171) ELT 191 (Tri-Kol). Finding was recorded by the Commissioner (Appeals) that the appellant received the vehicles and arranged for its further transportation to various places in India through railway rakes. Tata Motors paid the appellant Rs. 1700/- per vehicle plus Rail charges extra, which is paid on actual basis. Thus, the appellant carried out all the activities in respect of the vehicles from the stage of their clearances from the premises of the principal to the stage of delivery to the customers. Being aggrieved, the appellant is in further appeal before us. 3. The appellant vehemently contends that they are simply doing transportation work and unlike clearing and forwarding agent. They are not involved in storing of goods on behalf of the principal and thereafter forwarding them from time to time as per the direction of the principal. They are simply doing the transportation job wherein the vehicles at the time of dispatch from the factory are earmarked for delivery to particular buyers/dealers of the principal and upon receiving the vehicles from the factory, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of passing the impugned order and thus, the impugned order is cryptic and against the Larger Bench's decision and fit to be set aside. 3.3 Further, the appellant relies upon the ruling of the Punjab Haryana High Court dated 20.2.2008 in the case of Commissioner of Central Excise, Jalandhar Vs. United Plastomers - 2008 (10) STR 229 (P H), wherein the question involved was whether the service provided by United Plastomers, Amritsar to M/s IPCL as dealer/commission agent is covered under the Clearing Forwarding Agent Service' as defined under Section 65 of the Act as any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operation in any manner to any other person and includes a consignment agent? The Hon'ble High Court has held as under:- 13 . We find no force in the arguments raised by the counsel for the appellant, while passing the impugned order, the Tribunal has concluded that the case of the respondent-assessee is clearly covered by the ratio of the decision in the case of M/s. Raja Rajashwari Intl. Polymers Pvt. Ltd. (supra) wherein it has been observed that the dealer agent falls within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the Tribunal was right in holding that the assessee Trade Tek Corporation was not providing taxable service as clearing and forwarding agent' to BALCO? In view of the fact that BALCO had appointed the assessee as consignment agent and the Revenue holding belief that the services rendered by the assessee under agreement of consignment agent amounted to clearing and forwarding agent' for and on behalf of the BALCO and, therefore, the respondent assessee was liable to pay Service Tax as clearing and forwarding agent. The Hon'ble High Court relying on the decision of the Larger Bench of this Tribunal in the case of L T (supra) and also on the ruling of the Punjab Haryana High Court in the case of United Plastomers, wherein the question was whether the dealer or commission agent would be covered within the expression Clearing Forwarding Agent, and rejected the appeal of the Revenue in view of the Larger Bench's decision of the Tribunal in the case of L T (supra). 4. The learned DR relies upon the impugned order and further relies on the ruling of the Karnataka High Court in the case of CCE, Bangalore Vs. Mahavir Generics - 2010 (17) STR 225 (Kar). In this case, the facts wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion basis does not engage in any of the activities connected with clearing and forwarding operations directly or indirectly.'' And thus found on facts that it was mere procuring the orders for the principal by an agent on payment of commission basis and thus would fall outside the purview of clearing and forwarding agent. The said decision would be inapplicable to the facts of the case as we have held that activity carried on by the assessee is that of a Consignment Agent. The Judgment of KULCIP MEDICINE-Supra relied upon by the learned counsel for the respondent to contend that Mahaveer Generics case namely, the judgment in question before this Court in the present appeal has also been taken into consideration in KULCIP's Case is liable to be brushed aside the contention of the assessee is not appealing to us for the reason that Tribunal in the said decision (KULCIP's Case) at paragraph-13 has taken the view that the Judgment in Mahaveer Generic (present case) has been accepted by the revenue and no appeal has been filed and accordingly was persuaded to accept the stand of assessee. The view taken by the Punjab Haryana High Court in KULCIP's Case, we find is factually in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F Operations" now remind us of an orchestra, performing a western classical symphony. It reminds us of a connoisseur's experience of harmony in western classical music. While listening to Mahler's 9th Symphony, one does not listen to an individual violin or a trumpet, but the harmony emanating from many different seemingly unrelated instruments. In the same way, a C F Agent's functions consisting of seemingly unrelated tasks are well orchestrated. This view of ours is strengthened by various references including the Report of the United Nations Economic Commission for Africa referred to by us in the preceding paragraphs all revealing in no uncertain terms that the freight forwarders are known variously as clearing agent, shipping forwarding agent etc. We are, therefore, of the view that even if one segment of activities is not demonstrated to be performed, it cannot be held that the appellants were not engaged in taxable service. Due to their orchestrated nature of work, such isolated activity can also be covered under "C F Operations". Merely, because the bassoon was not played in one of the movements of a symphony, it does not cease to be otherwise a part of the orchestra. While ..... X X X X Extracts X X X X X X X X Extracts X X X X
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