TMI Blog2017 (12) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... e loading, movement of coal from the collieries by Railways in receipt of the same at the destination of rakes are not to be organized by the appellant. The clearance of goods the coals is also not required to be organized by the appellant - the services provided by the appellant are not classifiable under C&F Agent Service - appeal allowed - decided in favor of appellant. - ST/89902/13 - A/91011/17 - Dated:- 28-11-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Ms. Lalita Phadke, Advocate for Appellant Shri M.K. Sarangi, Jt. Commissioner (A.R) for respondent ORDER Per: Raju This appeal has been filed by M/s. Nair Coal Services Limited against confirmation of demand and imposition of penalty under Section 76, 77 75A of the Finance Act, 1994 for the period 1.9.1999 to 31.3.2003. 2. Learned Counsel for the appellant pointed out that the appellants are engaged in providing service in relation to procurement of goods and services which are inputs for the client and the services covered by the definition of Business Auxiliary Service under Section 65(19) (iv) of the Finance Act, 1994. The appellants have taken service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive dispatch orders from the SEBs/companies or arrange for dispatch of coal. No invoices is prepared by the Appellant on behalf of the SEBs/ companies. 2.4. Ld. Counsel argued that they have no infrastructure to handle the coal and the coal companies are solely responsible for C F operation in accordance with the contract between the appellant s clients and coal companies. The appellant s services are engaged essentially to reduce the losses, improvement in quality of coal, optimum utilization of railway rakes. This by no stretch of imagination can be called Clearing and Forwarding operations. He further argued that CBEs vide Circular F.No.B-43/7/97-TRU, dt. 11.7.1997 this has clarified as under: 2.2. A Clearing and Forwarding agent normally undertakes the following activities. (a) Receiving the goods from the factories or premises of the principal or his agents; (b) Warehousing these goods; (c) Receiving dispatch orders from the principal; (d) Arranging dispatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal; (e) Maintaining records of the receipt and dispa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The judgment of the Full Bench is known as Larsen Toubro Ltd. v. Commissioner of Central Excise, Chennai - 2006 (3) S.T.R. 321 (Tri.-LB) : 2006 (110) ECC 634 : 2006 ECR 634 Tri.-Delhi . It gets revealed from the decision of the Larger Bench that after taking note of the definition of learing and forwarding agent (which has already been extracted above), the Larger Bench observed that the service should be connected with clearing and forwarding operations. The clearing and forwarding operations would be various activities having bearing on clearance of goods, which would involve documentary processes and arrangements for transfer of goods to their destination, which process may also involve clearance at subsequent stages during forwarding operations. In the opinion of the Larger Bench, the procurer of orders on commission basis renders services which are not connected with such clearing and forwarding operations, which have bearing on the movement of goods. It also mentioned that normally a C F Agent undertakes the following activities : (i) receiving the goods from the factories or premises of the principal or his agents; (ii) warehousing these goods; (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession such as arising out of or in respect of or in connection with or in relation to or in consequence of or concerning or relating to the contract are of the widest amplitude and content and include even questions as to the existence, validity and effect (scope) of the arbitration agreement. 31. In the case of Mansukhlal Dhanraj Jain and Others v. Eknath Vithal Ogale Etc., reported in (1995) 2 SCC 665 , the Apex Court held as follows : The expression in relation to (so also pertaining to ), is a very board expression which presupposes another subject matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Azeez, following and approving Nitai Charan Bagchi v. Suresh Chandra Paul, Shyam Lai v. M. Shyamlal and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertaking but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstood that a forwarding agent is not, in general, a carrier: he does not obtain possession of the goods: and he does not undertake the delivery of them at the other end. All that he does is to act as agent for the owner of the goods to make arrangements with the people who do carry, such as shipowners, road hauliers, railway authorities and air carriers, and to make arrangements, so far as they are necessary, for the intermediate steps between the ship and the rail, the Customs or anything else. Although there is a clear distinction between a forwarding agent and a carrier, the same person may carry on both activities at once, and contract sometimes as one and sometimes as the other. The fact that a person describes himself as a forwarding agent is not conclusive : and it is a question of fact to be decided according to the circumstances of each case whether a person normally carrying on business as a forwarding agent contracts solely as agent so as to establish a direct contractual link between his customer and a carrier (or possibly with several carriers, each undertaking a different part of the transit), or whether he contracts as principal to carry the goods, the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt who tenders dangerous goods to carriers without warning them of their nature or of the precautions which should be taken in their carriage is personally liable to the carriers for any resulting damage through breach of the implied warranty that the goods are fit for carriage. 11. From the reading of the definition contained in the aforesaid provision, together with its dictionary meanings contained in Legal and Commercial dictionaries, it becomes apparent that in order to qualify as a C F Agent, such a person is to be found to be engaged in providing any service connected with clearing and forwarding operations . Of course, once it is found that such a person is providing the services which are connected with the clearing and forwarding operations, then whether such services are provided directly or indirectly would be of no significance and such a person would be covered by the definition. Therefore, we have to see as to what would constitute clearing and forwarding operations. As is clear from the plain meaning of the aforesaid expression, it would cover those activities which pertain to clearing of the goods and thereafter forwarding those goods to a particular des ..... X X X X Extracts X X X X X X X X Extracts X X X X
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