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Balaji Agencies Pvt Ltd Versus Commissioner of Central Excise, Goa

2016 (1) TMI 66 - CESTAT MUMBAI

Clearing and forwarding agent (C&F agent) services - appellant is a distributor of Indian petrochemicals Corporation Ltd. - Scope of the distributor agreement entered by IPCL and the appellant - Held that:- appellant is required to function as distributor and is required to sell the products at a price as per the list price and remit the sale proceeds to IPCL appellant is responsible for discharge of all sales tax liability as dealer under the relevant clause; is required to sell the products as .....

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nt : Shri Mayur Shroff, Advocate and Shri Prasad Tendulkar, Consultant For the Respondent : Shri S.R. Nair, EO (AR) ORDER Per M. V. Ravindran This appeal is directed against Order-in-Original No. Goa/CEX/SNS/70/2003 dated 28.06.2006. 2. The relevant facts that arise for consideration are the appellant herein were appointed as it distributor of Indian petrochemicals Corporation Ltd. (hereinafter referred to as IPCL) during the period October 1999 to March 2004, on investigation by the authorities .....

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ties. Aggrieved by such an order, appellant preferred an appeal before the first appellate authority. After extending an opportunity of personal hearing, the first appellate authority did not agree with the contentions raised by the appellant and dismissed the appeal. 3. Learned Counsel would take us through the agreement entered by the appellant with IPCL and read the main clauses thereof and submit that the stand of revenue as to the services rendered by the appellant fall under the category o .....

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he case of Hardik Industrial Corporation 2012(26) STR 433 is directly on the point and is in favour of the appellant. He would also submit that the reliance placed by the lower authorities on non-existent facts in the impugned order be set aside. 4. Learned departmental representative on the other hand would draw our attention to the same agreement and submit, that appellant is representing himself as consignment agent of IPCL. He would submit that the agreement is read holistically it would ind .....

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rwarding agent and submit that consignment agent is under the definition. 5. We have considered the submissions made by both sides and perused the records. 6. The issue be considered in this case is whether appellant is covered under the definition of clearing and forwarding agent and liable to discharge service tax or otherwise. 7. The entire issue is raised by the revenue is based upon the distributor agreement entered by IPCL and the appellant herein. We have seen the agreement as produced by .....

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ls. 8. On such a factual matrix we find that the definition of Clearing and Forwarding Agent as per section 65(25) reads as under: "Clearing and Forwarding agent means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent." 9. It can be seen that the definition of Clearing and Forwarding Agent will not be attracted in this case as factual .....

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sales tax for the bills of sales of the goods sold by the appellant. It is also seen that such clause talks about the liability of the distributor to pay sales tax under the relevant sales tax acts shall survive even on termination or expiry of the agreement which itself indicate that the appellant is appointed as a distributor and not as C&F agent. 22. Ld.SDR's submission that accounts and registers of the appellant distributor are subject to verification of the representative/officers .....

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he sale of the goods to the purchaser and indicating sales tax payable against sales tax form. All these will lead to conclusion that the appellant was a distributor of the said IPCL. As regards points raised by ld.SDR that the appellant is paid service charge per metric tonne for the quantity of the product sold. I find that mode of consideration as agreed between mutually by contracting party, cannot be a guiding factor to arrive at a conclusion whether a party is a distributor or otherwise. 2 .....

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