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TMI Blog2023 (9) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... in the taxable value account. Resultantly, it was found that assessee-respondent has short paid the service tax of an amount of Rs.57,50,912/- while discharging their tax liability for providing Clearing and Forwarding Agent Service. The said deficient amount was proposed to be recovered from the assessee-respondent along with the interest and the penalties vide Show Cause Notice No. 23438 dated 13.12.2016. The said proposal was confirmed vide Order-in- Original No. 08/2017-18 dated 28.09.2017, when the appeal against the said order was filed, the Commissioner (Appeals) has allowed the appeal. The Review Committee of the department however opined the said findings to be illegal and improper. Pursuant whereto, the impugned appeal has been filed by the department praying for setting aside the said order of Commissioner (Appeals). 2. None had appeared on 27.03.2023 for the assessee-respondent. It was observed from order sheets that the assessee-respondent has not appeared even for once despite that the assessee-respondent was time and again been served with the notice of hearing. Even fresh notices of hearing, as were issued, were reported to have been served. Initially vide report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trading Company Vs. Commissioner of Central Excise, Bhopal reported as 2018 (9) G.S.T.L. 201 (Tri.- Del.) (viii) Sri Bhagavathy Traders Vs. Commissioner of Central Excise, Cochin reported as 2011 (24) S.T.R. 290 (Tri.-LB) 5. Learned counsel for respondent-assessee has submitted the copy of agreements with M/s. Dabur India Limited. It is impressed upon that the parties agreed for transportation and C & F services to be separate and independent services and therefore, the consideration for both the services cannot be clubbed together to levy services tax under the single service category of C & F service. This will be contrary to the Principle of classification of services as provided under Section 66 F of the Act. Copies of certificates for service recipients for making payment of tax under Reverse Charge Mechanism (RCM) are also placed on record. Relying upon the decision of M/s. Synergy Baxi Logistics Pvt. Ltd. of this Tribunal vide Final Order No. 51549/2019 dated 26.11.2019, learned counsel has requested for order under challenge to be upheld and appeal as filed by the department to be dismissed. 6. Having heard the rival contentions and perusing the case records, We obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow we need to look into the definition of Goods Transport Agency which is defined under Section 65 (50b) of the Act to mean: "Any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called". It is taxable under Section 65(105)(zzp) the service to any person by a goods transport agency, in relation to transport of goods by road in a goods carriage. The definitions make it clear that for the Goods Transport Service, it is the service for transportation of goods that too by road provided by the Goods Transport Agency which issues the consignment note also. 9. From the above discussion, we conclude that C&F Agent Service includes two kinds of service providers i.e. the freight forwarders and the clearing agent. When the C&F himself is providing both the services to the principle, he is liable to tax under Section 65(25) of the Finance Act. However, when C&F agent is engaging a GTA or another agency who are freight forwarders than the levy cannot be raised against the C&F agent for providing C&F agent service. 10. Though, this Tribunal in the case of Medpro Pharma Pvt. Ltd. (supra) had held that even isolated activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision has been dismissed by Hon'ble Supreme Court of India vide decision reported as 2012 (25) S.T.R. J127 (S.C.), while holding that service tax is leviable under the category of clearing and forwarding agent only if an agent renders both clearing and forwarding services. 13. The conclusion which stands finalized to our understanding is that for the service of clearing and forwarding agent to be taxable, the activities of clearing as well as forwarding shall be performed by one and the same agent. To put it otherwise, the service of clearing and forwarding agent will not be taxable if: (i) The agent outsources the activity of forwarding to a goods transport agency. (ii) The principle himself hires the GTA to perform forwarding activity and the clearing and forwarding agent is engaged only to perform the clearing activities. In both the situations the service provider for the forwarding activity since is a person different from C&F agent that the value of freight forwarding shall not be included in the value of taxable C&F Agent Service. If fact, service cannot be taxed as C&F Agent Service. 14. Reverting to the facts of the present case, we observe that irrespective there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad and Rail. From these clauses of both the agreements, it is clear that respondent is admitted to be the C&F agent. As already observed above respondent only is providing clearing as well as forwarding service. Hence it is not open to respondent to say that service provided by him is different from C&F Agent Service. Irrespective there are two separate contracts executed by the principle but for appointing one and the same person i.e. respondent to render carrying as well as forwarding service. This fact distinguishes the present case from Kulcip Medicines (supra). Thus, we hold that both the activities rendered by respondent shall constitute one synchronized service of C&F agent. Hence respondent is liable to levy under Section 65(25) of the Finance Act. More so for the reason that appellant is registered as C&F agent and not as GTA. Thus we answer the above question in negative by holding that when one and the same person is providing service of clearing as well as forwarding irrespective under two separate contracts, it shall not amount to be the bifurcation of C&F Service. The agent has to be assessed for rendering C&F Service 65(25) and 65(105) of the Finance Act. 15. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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