TMI Blog2015 (1) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... t and since the respondent, has not done its duty as clearing and forwarding agent and it has simply done only the duty of distribution of things which have been sent by BMF to the distribution centre of the respondent, it is pellucid that the respondent; would not come within the definition of Section 65(25) of the Finance Act, 1994. For invoking Section 65 (105) of the said Act, one must act as clearing and forwarding agent and than only Service Tax can be imposed. The decision rendered by the Punjab Haryana High Court has been upheld by the Hon’ble Apex Court reported in [2009 (12) TMI 851 - SUPREME COURT OF INDIA] [Commissioner v. Kulcip Medicines (P) Ltd.]. Therefore, it is quite clear that for invoking Sections 65(25) as well as Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in Orders-in-Appeals, the respondent has filed six Appeals before the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. 3. The Appellate Tribunal after considering the rival contentions put forth on either side has given a specific finding to the effect that the respondent has not been doing the duty of clearing and forwarding and all those things have been done by BMF Belting Ltd., and the duty assigning to the respondent is only to distribute things received from BMF and therefore, the respondent would not come within the purview of Section 65 of the Finance Act, 1994 and ultimately set aside all the orders passed in Orders-in-Original and also the orders passed in Orders-in-Appeal Nos. 94/2004, 41/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orders-in-Original as well as Orders-in-Appeals. But the Appellate Tribunal without considering the nature of duty done by the respondent and also without considering that the respondent would come within the contour of definition of Section 65 of the said Act, has erroneously set aside all the Orders in question and therefore, the Final Orders passed by the Appellate Tribunal are liable to be interfered with. 7. In order to controvert the contention put forth on the side of the appellant, the learned counsel appearing for the respondent has contended that Section 65(25) of the Finance Act, .1994 deals with definition of clearing and forwarding agent and Section 65(105) deals with taxable service and particularly sub-section(j) says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th nature of clearing and forwarding in relation to clearing and forwarding operations. 10. The consistent case put forth on the side of the appellant is that the respondent during the relevant period has done clearing and forwarding duty. The contention put forth no the side of the respondent is that the respondent has not acted as clearing and forwarding agent as contemplated under Section 65 of the said Act and its duty is to distribute the things supplied to its distribution Centre by BMF at its own cost. 11. The nature of duty mentioned on the side of the respondent has not been denied on the side of the appellant. Since Section 65 of the said Act deals with clearing and forwarding agent and since the respondent, has not done its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice Tax can be imposed. The decision rendered by the Punjab Haryana High Court has been upheld by the Hon ble Apex Court reported in 2012 (25) S.T.R. J127 (Supreme Court [Commissioner v. Kulcip Medicines (P) Ltd.]. Therefore, it is quite clear that for invoking Sections 65(25) as well as Section 65(105), a person should have acted as clearing and forwarding agent. 14. In the instant case, as enunciated earlier, the work done by the respondent is not resemblance to clearing and forwarding agent and it has merely distributed the things which have been sent by BMF to the distribution centre of the respondent at its. own cost and therefore, in any event the respondent cannot be mulcted with liability under the cover of Service Tax. 15. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
