TMI Blog2016 (1) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... tical issue in respect of a distributor of IPCL. In more or less of the same kind of agreement was considered by the Tribunal (in majority decision) in the case of Hardik Industrial Corporation [2011 (9) TMI 494 - CESTAT, AHMEDABAD]. - Appeal No. ST/249/06-Mum - - - Dated:- 2-7-2015 - M. V. Ravindran, Member (J) And P. S. Pruthi, Member (T) For the Appellant : 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 petroch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed that appellant shall disclose that they are acting as distributor of IPCL. He would submit that the majority order of the Tribunal in the 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 indicate that IPCL requires them to act as consignment agents. He would submit that the invoices issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 factually appellant is not functioning as clearing and forwarding agent. 10. We find that identical issue in respect of a distributor of IPCL. In more or less of the same kind of agreement was considered by the Tribunal (in majority decision) in the case of Hardik Industrial Corporation (supra). The ratio of the judgement is in paragraphs 21 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration 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. 23. In Clause No.17, it is very clearly indicated that the distributor shall sell the product in original packing and in original trade name/brand name of the IPCL. As regards the condition of Clause 20 of the said agreement, unsold stock of the unsold goods lying with the distributor, title shall continue vests in the hands of IPCL, would mean that the quantity which are un-sold and for which the appellant distributor had not paid sufficient deposit, would be the property of IPCL. In my view, this is purely commercial agreement entered into between IPCL and the appellant as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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