TMI Blog2017 (4) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... vities, under the agreements, confirm to both clearing as well as forwarding of goods. Held that: - to fall under the purview of taxable service, both clearing and forwarding activities should be provided by the service provider. This fact is evident from the word 'and' used after the word 'clearing', but before the word 'forwarding' in clause (j) of Section 65 (105) ibid. Thus, the word 'and' placed in between the words 'clearing' and 'forwarding' should be considered in a conjunctive sense. The goods were consigned by the principals to the appellant’s premises and the appellant did not undertake any clearing activity. Since the appellant is not undertaking the activities of both clearing and forwarding, service tax would not be levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the activities undertaken by the appellant are confirming to the definition of taxable category under the Clearing Forwarding service for the purpose of levy of service tax. The SCN dated 22.10.2007 was adjudicated vide order dated 14.12.2009, wherein service tax demand of ₹ 21,88,122/- along with interest was confirmed against the appellant. Besides, penalties under Section 77 and 78 of the Finance Act, 1994 were also imposed in the said order. On appeal, the ld. Commissioner (Appeals) vide the impugned order dated 04.08.2010 has upheld the adjudged demand. 3. The ld. Advocate appearing for the appellant submitted that pursuant to the agreement entered with various client companies, the goods were consigned by them (clients) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to clearing and forwarding operations, in any manner . Further, the term Clearing and Forwarding Agent has been defined in sub-section (25) of Section 65 ibid to mean 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 as a consignment agent . 7. Perusal of the aforesaid statutory definitions make the position clear that in order to fall under the purview of taxable service, both clearing and forwarding activities should be provided by the service provider. This fact is evident from the word 'and' used after the word 'clearing', but before the word 'forwarding' in claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lets and/or other distributors (the Company s Customer s). iii). Bata India Ltd.- The Company or its manufactures, sub-contracting units, suppliers etc shall dispatch, at its discretion, such quantities of the products as it considers fit from factory or from designated suppliers of the Company and inform the C FA of such dispatch and the location from which the dispatched Products are to be received. The C FA shall arrange, at its own cost to receive and clear into the Warehouse, without delay, the Products dispatched by the Company from time to time. The Company or its manufacturers, supplier s etc shall dispatch the Products to the Company s stock point/s maintained by the C FA on stock transfer basis. iv). Dumex India P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of service tax is limited to providing of both the activities by the C F Agents i.e. clearing and forwarding and in absence of either to the activities, levy of service tax would not be justified. The relevant paragraphs in the said decision are extracted here in below: 5. The taxable service in the present case is any service provided to a client, by a clearing and forwarding agent, in relation to clearing and forwarding operation in any manner [Sub-clause (j) of Section 65(105) of Finance Act, 1994]. A perusal of this definition makes it clear that, in order to attract the levy, the services must be in relation to clearing forwarding operation . Thus, the definition makes it clear that all services rendered by the clearing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service rendered by the appellant does not satisfy the requirement of clearing and forwarding. We, therefore, are of the view that demand is not sustainable. To the same effect is our earlier decision in the case of M/s. Mahavbeer Generics. Accordingly, following our earlier decision, the present appeal is allowed after setting aside the impugned order. The appellant shall be entitled to relief, if any. 9. Revenue s appeal against the decision of the Tribunal in the case of Kulcip Medicines (P) Ltd. (supra) was rejected by the Hon ble Punjab Haryana High Court, reported in 2009 (14) S.T.R. 608 (P H). Further, SLP filed by the Revenue against the said judgment has also been dismissed by the Hon ble Supreme Court, reported in 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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