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Somani Agencies Versus CCE & ST, Indore

2016 (1) TMI 851 - CESTAT NEW DELHI

Classification - Activity of arrangement for dispatch and transportation of goods to various destinations as per the directions of the service recipient - clearing and forwarding agent service - bona fide belief - Extended period of limitation - Held that:- as per the activities performed by the appellant, it is squarely covered within the definition of clearing and forwarding agent and it provided service to a client in relation to clearing and forwarding operations. - Extended period of li .....

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period has been rightly invoked. - Demand confirmed - Decided against the assessee. - Appeal No. ST/723/2009-CU(DB) - Final Order No. 50085/2016 - Dated:- 20-1-2016 - MR. G. RAGHURAM, PRESIDENT AND MR. R.K. SINGH, MEMBER (TECHNICAL) For the Petitioner : Shri Manish Saharan, Advocate For the Respondent : Shri K. Poddar, DR ORDER PER R.K. SINGH: Appeal has been filed against order in appeal dated 30.6.2009 which upheld the order in original dated 27.3.2009 in terms of which service tax demand of & .....

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e engaged in both clearing and forwarding of the goods. (ii) It was under bona fide belief regarding its non-liability to service tax and therefore extended period is not invocable. (iii) The appellant also contended that the reasoning in the impugned order is inadequate. 3. Ld. Departmental Representative on the other hand stated that in this case the appellant acted as a clearing and forwarding agent and provide the service of loading, unloading storing of goods sent by the service recipient a .....

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nt of Karnataka High Court in the case of CCE Vs. Mahavir Generics - 2010 (17) STR 25 (Karnataka). 4. We have considered the contentions of both sides. We appreciate the nature of service rendered by the appellant. It is useful to quote from the agreement/contract/appointment of the appellant in terms of which the appellant rendered the impugned service. (i) Noticee shall act as C&F agent for the purpose of receiving, storing and forwarding of goods. (ii) Noticee shall unload, load, stock an .....

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s advised by the company. (vii) The notice is fully responsible for collection of the payments for goods and deposit the same in the principals account. (viii) Noticee shall comply with all statutory and legal requirements such as registration/license for operation of C&F agency and for any other legal requirements that may be applicable to the operations of the C&F agency. It is clear from the provisions of the above-quoted agreement that as per the agreement itself the appellant was to .....

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ter forwarded them as per the directions of the service recipient. Section 65 (25) of Finance Act, 1994 defines clearing and forwarding agent 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. The taxable service is defined under section 65 (105) (j) ibid is as under: Taxable service means any serv .....

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erein the word clearing was given the meaning as if such clearing was required from the factory. Supreme Court vide its order (2012 (25) STR J127 (Supreme Court) summarily dismissed the special leave petition against the said order of Punjab and Haryana High Court. Thus in the wake of Supreme Court judgement in the case of Kunhayammed Vs. State of Kerala 2001 (129) ELT 11 (SC) there was no merger of the Punjab & Haryana High Court order with the order of Supreme Court and consequently the ju .....

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he agreement which has been quoted in the said judgement. The said agreement is similar (if not identical) to the one under which the appellant rendered service and therefore the said judgement of Karnataka High Court is squarely applicable to the present case. It may be pertinent to note that P&H High Court in its judgement in the case of Kulcip Medicines (supra) took note of the assertion of Madhav Rao, ld. Counsel that the CESTAT judgement in the case of Mahavir Generics was not appealed .....

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