TMI Blog2008 (8) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... slt. for the Respondent. [Order per M. Veeraiyan, Member (Technical)] - These two appeals are filed by the Department against the orders of the Commissioner (Appeals) No. 350-351/CE/Appl/LDH/05 dated 25.07.2005. 2. Heard both sides. 3. The relevant facts, in brief, are as follows: (a) The respondents have entered into agreements with manufacturers of goods to sell the goods as consignment agents. As per the agreements, the goods were entrusted to the respondents for sale on behalf of the company; (b) The respondents are required to keep sign board indicating that the goods are stored on behalf of the company. They are required to undertake loading and unloading of the goods and are entitled to reimbursement of actual expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the service tax; (h) The Department is in appeal against the above orders of the Commissioner (Appeals). 4.1. Learned DR took us extensively through the terms of the agreements and also took us through the classification issued by the Central Board of Excise Customs which is as follows : A clearing and forwarding agent normally undertakes the following activities : a) Receiving goods from the factories or premises of the principal or his agents b) Warehousing these goods c) Receiving dispatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal d) Maintaining records of the receipt and dispatch of goods and the stock available at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and raising their own invoices though a stamping is made to the effect that they are consignment agents of the principals. He submits that they cannot be considered as 'clearing and forwarding agents', in view of the fact that no despatch orders are received from the principals; sale of goods was being undertaken on their own decision; goods are dispatched as per their decision; invoices are raised in their own name and that collection of sale proceeds has been done at their own risk. 5.2 He relies on the following decisions : (i) Larsen Toubro Ltd. vs CCE, Chennai, 2006 (136) ECR 0634; (ii) CCE, Jalandhar vs United Plastomers, 2008 (10) STR 229 (P H); (iii) CCE ST vs Transasia Sales Syndicate, 2007 (8) STR 467; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd delivered to the customers on behalf of the principals and the entire sequence of activities/responsibilities undertaken by the respondents show that they act only as consignment agent. 6.2 The 'consignment agent' is specifically included under the category of 'clearing and forwarding agent' by the inclusive definition. The respondents have undertaken several activities which have been considered to be activities of 'clearing and forwarding agent'. 7. The relevant portion of the decision of the Larger Bench of the Tribunal in the case of Medpro Pharma Pvt. Ltd. vs CCE, Chennai (supra) is worth reproducing at this stage "31. We have heard both sides and perused the record. On a fresh look at the whole issue and after ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one segment of activities is not demonstrated to be performed, it cannot be held that the appellants were not engaged in taxable service. Due to their orchestrated nature of work, such isolated activity can also be covered under 'C F Operations'. Merely, because the bassoon was not played in one of the movements of a symphony, it does not cease to be otherwise a part of the orchestra. While forming this view, we have certainly not overlooked the fact that while music can be sometimes taxing, a tax can never be musical 32. While arriving at this conclusion, we also go by the trade understanding based on sheer common sense, which is often uncommon. Because a buyer buys only rice and not wheat in a grocery shop, which claims to sell 'wheat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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