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Sri Sabarey Enterprises, Sri Vasavi Jeans, LNGS Pvt. Ltd. Versus Commissioner of Central Excise, Coimbatore

2015 (9) TMI 53 - CESTAT CHENNAI

Clearing & Forwarding Agency Service or Business Auxiliary Service - penalty of under Sections 78 & 76 and also under 75A and 77 of the Finance Act - Held that:- Appellant's principal activity is sale and marketing of goods on behalf of the principal manufacturer and also for carrying out storage and distribution. The lower authorities have held that the levy would fall under C&F Agent service because the appellants are handling the goods in addition to sale and marketing. In view of definition .....

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rinciple activity is not related to clearing & forwarding of goods, as it is clearly evident from the agreement that the appellant was appointed as Commission Agent for marketing and sale of goods. Therefore, the demand under C&F service is not sustainable as held in the above Tribunal's decision in CCE Vs Transasia Sales Syndicate (supra) which has been upheld by Hon'ble Supreme Court as reported in [2012 (3) TMI 419 - SUPREME COURT]. - service tax demand confirmed under C&F service is not sust .....

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005 all are passed by Commissioner (Appeals), Coimbatore. As the issue involved is common in all three appeals, they are taken up together for disposal. 2. The short issue relates to demand of service tax on the commission received by the appellants under Clearing & Forwarding Agency Service for the period September 1999 to March 2004. The adjudicating authority confirmed the demand and also equal penalty of under Sections 78 & 76 and also under 75A and 77 of the Finance Act. The LAA uph .....

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elated to sale and marketing by the appellant. The principal function of the appellants is marketing and sale for the principal manufacturer. He further submits that Explanation to definition of "Commission Agents" includes any person who acts on behalf of another person and causes sale or purchase of goods and includes handling of delivery of goods and other activities. He submits that so long as the main activity is only for sale and marketing of goods it is rightly classifiable unde .....

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4. On the other hand, Ld. A.R reiterates the finding of OIA and submits that service tax has been rightly demanded under Clearing & Forwarding Agent as appellants has handled the goods and they have not acted as commission agent. He relied on page-57 of the paper book. 5. After hearing both sides, the short in this case relates to service tax demand is classifiable under Business Auxiliary Service on commission agent or clearing and forwarding agent service. We have perused the relevant agre .....

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65 (19) of the Act, "commission agent" means a person who causes sale or purchase of goods on behalf of another person for a consideration which is based on the quantum of such sale or purchase. In the present case, appellant's principal activity is sale and marketing of goods on behalf of the principal manufacturer and also for carrying out storage and distribution. The lower authorities have held that the levy would fall under C&F Agent service because the appellants are hand .....

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rvice but as "Commission Agents". The relevant para-5 of the Tribunal's order is reproduced as under :- "5. We have gone through the records of the case carefully. Revenue has relied on the decision in the case of Prabhat Zarda Factory. However, the Larger Bench, in the case of Larsen & Toubro Ltd. v. CCE, Chennai - 2006 (3) S.T.R. 321 (Tri.-L.B.), has overruled the decision in the case of Prabhat Zarda Factory. Therefore, Revenues reliance on the above mentioned decision .....

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