TMI Blog2019 (1) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries, it is seen that the appellants are appointed as consignment agents. Similarly the agreement with M/s. Baerlocher India Additives (P) Ltd. and DCW Ltd. mention the appellants to be consignment agents - learned Commissioner (Appeals) has found that the appellants have not contested the payment of service tax for the previous period. Therefore, there was no reason to change the existing classification as Clearing and Forwarding Agents - the lower authority and the Commissioner (Appeals) have rightly upheld the classification under Clearing and Forwarding Agents - appeal dismissed. Whether the appellants are liable to pay cenvat credit availed and utilized in excess of 20% and as to whether the appellants are eligible to avail a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI. P. ANJANI KUMAR, TECHNICAL MEMBER Mr. P. Nagendran, Advocate For the Appellant Mr. K.B. Nanaiah, Assistant Commissioner (AR) For the Respondent ORDER Per: P. ANJANIKUMAR Heard both sides and perused the records. 2. Briefly stated the issues involved in these appeals are as follows: a. Whether the appellant is a Commission Agent or a Clearing and Forwarding Agent during the period 01.04.2001 to 09.07.2004? (Appeal No. ST/172/2008). b. Whether the appellants are liable to pay cenvat credit availed and utilized in excess of 20% and as to whether the appellants are eligible to avail a cenvat credit on the service tax paid on Mobile Phone Charges under Section 73(2) of the Finance Act 1994 read with Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing through the agreement between the appellant and M/s. Fine Organic Industries, it is seen that the appellants are appointed as consignment agents. Similarly the agreement with M/s. Baerlocher India Additives (P) Ltd. and DCW Ltd. mention the appellants to be consignment agents. We find that learned Commissioner (Appeals) has found that the appellants have not contested the payment of service tax for the previous period. Therefore, there was no reason to change the existing classification as Clearing and Forwarding Agents. We find that as per the definition of Clearing and Forwarding Agents in terms of Section 65(25) of the Finance Act 1994, the activities of Clearing and Forwarding Agents include that of Consignment Agent. Therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice on which no service tax is leviable under Section 66 can be termed as exempted service . We find that this is very curious and extended argument. To be an exempted service, the activity should be a service. Without any statute categorizing the trading as a service, it cannot be held that it is an exempted service . We do not find any infirmity with the order of the original authority. Accordingly, we find that the impugned Order-in-Revision as far as this demand is concerned is not sustainable. Coming to the second issue of cenvat credit on Mobile Phone Bills availed by the appellant during 04/2004 to 12/2005, the original authority has held that out of ₹ 26,404/- (Rupees Twenty Six Thousand Four Hundred and Four only) credit t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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