TMI Blog2008 (1) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... J) [Order (Oral)].-1. This appeal arises from Order-in-Appeal No.173/2005 CE dated 8.9.2005 by which the appellant's activity of purchasing goods from M/s. ITC Ltd. and selling them at the price fixed by ITC Ltd. has been considered to be coming under the category of Consignment Agent , as the assessee did not take registration certificate nor paid the Service Tax, demands were issued and confirmed along with like-sum as penalty besides penalties under various Sections of Finance Act, 1994. The appellant contended that they were not carrying on the activity of Consignment Agent or that of Clearing and Forwarding Agent. They were in fact receiving the goods from M/s. ITC Ltd. by invoices. They maintain their own books of accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operations. * The specified operations are clearing and forwarding of goods. * The service must be provided to another person in any manner. * A consignment agent is also treated as a clearing and forwarding agent. 2.1 They pointed out that all the above ingredients were not present. They pointed out that M/s. ITC Ltd. was in the position of a seller of goods and they were in the category of purchasers of goods and the Sale of Goods Act would apply and as such Sales Tax was being collected on that account. Their pleas have been negatived on the basis of the definition of Black's Laws Dictionary of Consignment Sale. The Commissioner has taken a different view that they would come within the ambit of Clearing and Forwardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal only and are not free to sell the same to any person. This is not the case here. Merely because the ownership of the apparels does not pass on the respondent does not mean that respondent becomes the clearing and forwarding agents. The scope of the said service stands clarified by the Board and various circulars of the Commissionerates. Reference may be made to Mumbai Commissionerate's Trade Notice No.59/99 dated 4.10.99 which we would like to reproduce below: Normally there is a contract between the principal and the clearing and forwarding agent detailing the terms and conditions and also indicating the commission or remuneration to which the clearing and forwarding agent is entitled. A clearing and forwarding agent norm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Larsen and Toubro Ltd. Vs. CCE, Chennai - 2006 (3) STR 321 (T-LB). He also relied on Zaveri Patel Vs. CC CE vide Final Order dated 27.7.2007 rendered by this bench wherein also similar issue of procuring or booking of orders for the principal by an agent on payment of commission basis was held to be not coming within the category of C F Agent. Numbers of similar orders were cited by the learned Counsels. 5. The learned JDR again reiterated his plea that the appellants have to be treated as Clearing and Forwarding Agent or Consignment Agent in terms of the agreement entered into with the ITC Ltd. He relies on the following judgments which are as follows. 5.1 In the case Vijay Enterprises Vs. CCE, Belgaum - 2007 (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned JDR are distinguishable, while the one cited by the learned Counsel clearly applies to the facts of the case. The appellants have been covered under Sale of Goods Act for the purpose of levy of Sales Tax. They have sold the goods on behalf of the principal as an Agent and their activity involved selling the goods to the purchasers and they were not handing the goods to come within the category of Clearing and Forwarding agent or as a consignment agent. Therefore, the impugned order is not legal and proper in the light of the citations given by the learned Counsels. The citations given by learned JDR are distinguishable. The impugned order is set aside and the appeal is allowed with consequential relief. (Pronounced and dictate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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