TMI Blog2020 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... is not liable to pay service tax on the services rendered by them - demand set aside - appeal dismissed - decided against Revenue. - S. Tax Appeal No. 75 of 2010, 80 of 2010 And Service Tax Cross Objection No.38 of 2010 - FINAL ORDER NO.75313-75314/2020 - Dated:- 6-2-2020 - HON BLE MR. S. S. GARG, MEMBER (JUDICIAL) AND HON BLE MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Mr. T. Mondal, Authorized Representative for the Appellant Mr. J. K. Mittal, Advocate Shri Pranabesh Ghosh, G. M. Accounts for the Respondent ORDER PER P. V. SUBBA RAO : Heard both sides and perused records. 2. The assesee s appeal is against confirmation of the demand of Service Tax on their activities under the head Clearing and Forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is liable to pay Service Tax. 5. Ld. Counsel for the assessee submits that this case has been decided on merits in their favour by the Hon ble Supreme Court in the case of Coal Handlers Pvt. Ltd. Vs. Commissioner of Central Excise, Kolkata-I [ (2015) 11 SCC 683]. He also submits that relying on this judgment of the Hon ble Apex Court, the Hon ble Mumbai Bench of this Tribunal had in their own case [(2019) 22 G.S.T.L. 76 (Tri.-Mumbai) held that they are not liable to pay Service Tax. 6. Following the decision of the Hon ble Apex Court in the case of Coal Handlers Pvt. Ltd. (Supra) and the judgment of Tribunal Mumbai in the appellant s own case, this Bench, vide Final Order No.76188- 76189/2019 dated. 25/06/2019 has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in getting the coal cleared from the collieries/supplier of the coal. Movement of the coal is under the contract of sale between the coal company and Ambuja companies. Even the coal is loaded on to the railway wagons by the coal company. The goods are not under any legal detention from which they need to be freed by the appellant. Not only this, destination of the goods is known to the coal company and the railway rakes are placed by the coal company for the said destinations. The destination is the factories of the principal itself, namely, Ambuja companies, where the coal is to be delivered by the coal company as per predetermined/ agreed covenants between them. Therefore, there is no occasion for Ambuja companies to instruct the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taxing provision should be considered strictly without leaving any intendment. When law prescribed certain activity shall only be taxable on occurrence of taxable event, without any evidence to that effect, there is no presumption in taxation. In absence of such evidence on record, it is not at all possible to hold beyond the ratio laid down by the Apex Court which is binding on Tribunal on the given facts and circumstances and akin to the facts in the judgment of the Apex Court. 8. We find that the very essential requirement, in order to constitute clearing and forwarding services, of clearance of coal from the collieries is absent in the present case and that the assessee is only undertaking liaisoning related services to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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