TMI Blog2018 (1) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 to 2009-10 and in the present case period is 2010-11, where it was held that It would appear that transportation is the most prominent of these and the classification that was declared by the appellant cannot be faulted for its legality. More so, as the impugned order has failed to consider such an option. Nay, even the show cause notice is regrettably bereft of such a scrutiny. The activity of the appellant is not classifiable as ‘clearing and forwarding agents service’ and the demand on that head must fail. Appeal allowed. - Appeal No. ST/89796/13 - A/85079/2018 - Dated:- 18-1-2018 - Shri Ramesh Nair, Member ( Judicial ) And Shri Raju, Member ( Technical ) Shri Jay Chheda, C.A. for Appellant Shri V.R. Reddy, Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed penalty along with interest. The learned Commissioner (Appeals) in an appeal filed by the appellant upheld the Order-in-Original and rejected the appeal, therefore the appellant are before us. 2. Shri Jay Chheda, learned Chartered Accountant appearing on behalf of the appellant submits that in their own case on the identical issue for the period 2005-06 to 2009-10, this Tribunal vide Order No. A/89380/17/STB dated 06.09.2017 held that the same services is of GTA and not Clearing and Forwarding Agency Services , accordingly the demand was dropped. He placed reliance on the following judgment:- (i) Coal Handlers Pvt. Ltd. Vs. CCE, Kolkata-I - 2004 (171) ELT 191 (Tri.-Kolkata) (ii) Coal Handlers Pvt. Ltd. Vs. CCE, Range Kol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional description. This averment relies upon the responsibility of the appellant to load the coal and carry it according to the instructions of the client, M/s Grasim Industries Ltd, to their factory and the definition of the service in section 65 (105) (j) of Finance Act, 1994 which is to any person, by a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner with that of the provider in section 65(25) 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 in Finance Act, 1994. 6. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing these goods; (iii) receiving dispatch orders from the principal; (iv) 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; (iv) maintaining records of the receipt and dispatch of goods and the stock available in the warehouse; and (v) preparing invoices on behalf of the principal and enunciated that 10............... In cases where the buyer is under an obligation to take delivery of the goods from the vendor s premises, there would not be any need on the part of the vendor to engage any forwarding agent, nor can a person engaged for the purpose of clearing and forwarding operations, insist on pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, there is no occasion for the Ambuja companies to instruct the appellant to dispatch/forward the goods to a particular destination which is already fixed as per the contract between the coal company and the Ambuja companies. All that is required is the substitution of Ambuja companies by Grasim Industries Ltd, rail to be substituted by road and modify the persona of the loader from the coal company to the appellant and we could well be narrating the facts of the dispute before us. Conscious as we are that the dispute before the Hon ble Supreme Court was the attempt by Revenue to fasten the tax liability as provider of clearing and forwarding agent service on a purchase agent operating on commission basis with the appellant relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nay, even the show cause notice is regrettably bereft of such a scrutiny. The activity of the appellant is not classifiable as clearing and forwarding agents service and the demand on that head must fail. 10. It now remains to examine the claim of the appellant that, with the difference in tax liability as well as interest having been discharged in full, the proceedings for the other demand of ₹ 94,75,010 must also fail. We find an inconsistency between the claim and the narration in the impugned order which has found only a portion of the demand to have been remitted. The appellant has also not made any submission on this matter. It would, therefore, be inappropriate to consider the claim of the appellant without this essential ..... X X X X Extracts X X X X X X X X Extracts X X X X
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