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TMI Blog2006 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing activities for marketing the goods:- (a) Stock the goods on behalf of the appellants. (b) To sell the products in the name of BPL on behalf of the appellants as a consignment agent at the price fixed by the appellants. Allow discounts to dealers as per market conditions on behalf of the appellants. (c) To advertise for the product on behalf of the appellants. (e) Undertake C & F operation and local deliveries on behalf of the appellants. Further according to the agreement:- (a) Property in goods would remain in the hands of the appellants. (b) Sale price of the goods sold would be paid within 45 days of sale. (c) Responsibility of shortage/damage on BPL after delivery is taken from the appellants. Further it was agreed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner. 3. Shri G. Shivadass, the learned Advocate appeared for the appellants and Shri R.K. Singla, the learned Jt. CDR for the Revenue. 4. The learned Advocate urged the following points:- (i) Apart from doing the activity of clearing and forwarding, BPL undertook many other activities as per their agreement with the appellants. For all the activities, the appellant reimbursed an amount of Rs. 20,47,21,664/-. But as far as the service tax liability is concerned, the service tax in the present case is on the service of 'clearing and forwarding agent'. The Revenue demanded service tax on the entire amount reimbursed. This is not correct. Any activity done by a clearing and forwarding agent other than clearing and forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h include C & F agents. The Supreme Court in the case of Laghu Udyog Bharati v. Union of India [2006 (2) S.T.R. 276 (S.C.) = 1999 (112) ELT. 365 (S.C.)] held that the provisions of Rule 2(d) (xii) is ultra vires the Finance Act, 1994 itself and accordingly quashed the sub-rule in question. In order to get over the provision, the Finance Act, 2000 amended the definition of assessee under Section 65 during the period 1-7-1997 to 11-5-2000. The amendment sought to validate the action of levy and collection of service tax taken between 16-7-1997 and 12-5-2000 (the day Finance Act, 2000 received presidential assent) in respect to clearing and forwarding agents. The amendment also sought to deny any refund of service tax to users of such services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplate liability of appellants under Section 71A the same cannot be invoked to issue a show cause notice. Even if the amendment, the Department cannot initiate any fresh proceeding when no action was initiated before 12-5-2000. The decision of the Tribunal has been affirmed by the Apex Court [2006 (3) S.T.R. 715 (S.C.) = 2005 (187) E.L.T. 5 (S.C.)]. (vi) The imposition of penalty does not survive since the explanation was inserted in the retrospective amendment of Finance Act, 2000 which specifically stated that any ad or omission on the part of any person in relation to these retrospective amendments shall not be punishable. 5. The learned Jt. CDR reiterated the orders of the lower authorities 6. We have gone through the records of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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