TMI Blog2006 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... rigerators and plastic molded parts. They appointed M/s. BPL Ltd. (hereinafter referred to as BPL) to act as consignment agent vide agreement dated 21-3-1997 for marketing their goods. BPL agreed to take the following 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994 was imposed. Interest was also demanded under Section 75 of the Finance Act, 1994. The appellants approached the Commissioner (Appeals). The Commissioner (Appeals) passed the impugned order confirming the finding of the Assistant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the person providing taxable service shall collect and pay the service tax. However, as per the Rule 2(d) (xii) every person providing taxable service to any person should collect and pay the service tax in respect of certain services which 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uling of Apex Court and making the service receiver the person liable to pay tax. The Tribunal in the case of L H. Sugar Factories Ltd. V. CCE [2006 (3) S.T.R. 230 (1) = 2004 (165) E.L.T. 161] wherein it was held that since section 73 did not 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 specif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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