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TMI Blog2008 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The appellants entered into two separate agreements in 1999 with M/s Haldia Petrochemicals Ltd. (hereinafter referred to as HPL). One agreement was for appointment as Consignment Stockist Agent and another agreement was for appointment as Del Credre agent. Both were renewed by fresh agreements in 2002. Relevant paragraph of two agreements which give an idea about the type of services to be rendered by the appellant are extracted below for convenience. "Paras 2, 3 & 4 of the Consignment Stockist Agreement: 2. Subject to the production and availability of the said Product, the COMPANY shall make available to the Consignment Stockist the said Product, from its factory/warehouse for distribution/sale by him on the terms and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sa, Bhiwandi & Mumbai (hereinafter called 'the said Depot') duly approved by the COMPANY. The changes therein at the advice of the COMPANY and to the satisfaction of the COMPANY." "Para 2 A & B of the Del Credre Agent Agreement: 2. PROCEDURE The terms and conditions subject to which promotional activities and the sale of the said product are to be carried and effected are: A. Ganapati Petrochemicals shall cultivate and maintain good relationship with customers and potential customers in accordance with sound commercial practice and make best efforts to inspire the customers to purchase the said Product from HPL or through Ganapati Petrochemicals. In carrying out its obligations under this Agreement, Ganapati Petrochemicals Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to pay interest on the tax involved. 3. Heard both the sides. Ms. Aparna, learned advocate on behalf of the appellant stated that lower authority failed to recognize the fact that there were two types of services being rendered and there were two separate contracts for the same. First contract required appellants to maintain facilities for stocking and selling the product and also collect the payment for which they were getting Rs.450 per M.T., whereas in case of second contract, they were required to procure orders and submit to HPL and after the supply is made ensure that payment is received by HPL and for this service they would get 350 per M.T. The appellants have been paying service tax on the amount receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and terms and conditions of agreement and the nature of the agreement. The Jt. Commissioner in his OIO observed as follows: "This agreement made on this 1st day of July 2002, between Haldia Petrochemicals Ltd. having its registered office at 1, Auckland Palace, Calcutta- 700 017 (herein after called company which expression shall included its successors and assigns) of the one part and M/s Ganapati Petrochemicals, a proprietary firm having its registered office at 152, Sanay Building No.6, Mittal Industrial Estate, Andheri-Kurla Road, Marol, Andheri (East), Mumbai-400 059 represented by Mr. Hitesh Rasiklal Shah (hereinafter referred to as the "Consignment Stockist") which expression shall include its successor) of the other part." Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the collection and payment of all taxes, dues and levies. That while effecting sale of the products, the consignment stockist shall disclose that he is a consignment stockist of the Company. That in consideration of the services rendered by the consignment agreement, the company shall pay to the consignment stockist a commission at the rate of Rs.450/- per M.T. From the foregoing facts, I hold that M/s Ganapati were appointed as Consignment Stockist Agent by M/s Haldia and not as Del-Credre Agent." 6. This shows that Jt.Commissioner totally missed to consider the second agreement and he only looked into the first agreement relating to consignment stockist agent. The observations of the Commissioner (Appeals) are as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to meet the requirements of the market. The company will transfer his product to the consignment stockist from time to time through stock transfer invoices at prices determined by the company based on prevailing market prices. The consignment stockist will be responsible to sell the products as per instructions of the company at prefixed list prices of M/s Haldia Petrochemicals, which were declared and intimated to the consignment stockist by the company from time to time. The consignment stockiest will comply all statutes, laws and regulations for the company and liable for the collection and payment of all taxes, dues and levies. The company (M/s Haldia Petrochemicals) shall pay to the consignment stockist (M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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