TMI Blog2016 (12) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... 65(25) read with Section 65(105) of the Finance Act, 1994. Accordingly, we allow the appeal filed by the appellant-assessee - decided against Revenue. - ST/171 & 179/2009-CU[DB] - FINAL ORDER NO.-70812-70813/2016 - Dated:- 29-8-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Rajeev Ranjan, Jt. Commr. (A.R.) for the Revenue Shri B.L. Narasimhan Shri Atul Gupta, Advocates for the Assessee ORDER These cross appeals have been preferred both by the assessee and the Revenue against the order of adjudication passed by Ld. Commissioner (Appeals) dated 31.10.2008, confirming the service tax of ₹ 55,28,832/- along with interest and also imposed penalty under Section 75 A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority have imposed less penalty under the provisions of Section 76, whereas maximum penalty being @ 2% of the tax amount should have been levied. 5. The learned Counsel for the appellant-assessee Mr. B.L. Narasimhan argues that the elements of C F services are absent in the facts and circumstances of the case. It is admitted fact that the appellant is not doing any clearing work for their principals. The appellant received liquor bottles from their principals/distilleries, they stored them and thereafter sale the same at the best prices under the market condition having stipulation of minimum sales price by the manufactures. It is also pointed out that there is element of trade also involved as in the case, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F agent is that the relationship between the service provider and receiver should be in the nature of the Principal (owner) and agent. The C F agent carries out all activities in respect of the goods rights from the stage of their clearances from the premises of the principal to its storage and delivery to the customers. The learned Counsel also referred to the Ruling of Hon ble Punjab and Haryana High Court in the case of CCE Vs. Kulcip Medicines Pvt. Ltd. 2009 (14) STR 608, wherein Hon ble High Court considered the use of the word and used after the word clearing but before the word forwarding in Clause (j) of Section 65(105) of Finance Act, 1994 whether used in conjunctive or dis-injunctive sense. The Hon ble High Court have ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictionary, the Apex Court observed that a forwarding Agent is such a person or company whose business is to receive and goods for others also termed as trade forwarder. It was further observed that from reading of the definition and the provisions of the Act together, it becomes apparent that in order to qualify as C F Agent, such a person is to be found to be engaged in providing any service connected with the clearing and forwarding operations. 8. In view of the admitted facts that the appellant is not involved in clearing of the goods from the factories of their principal but only receives and stores such goods when delivered to them and thereafter forward the same by way of sale or otherwise as per direction of the principal. They ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
