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TMI Blog2009 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ncheti Tea Company, M/s. Gillanders Arbuthnot & Co., etc. and storing the same in their go-down at Jodhpur. The appellant was selling tea at a price fixed by their principals and as mutually agreed upon. Show Cause Notice dated 19.4.2006 was issued proposing demand of tax of Rs.10,97,758/- for the period October, 2000 to March, 2005 under the category of 'Clearing & Forwarding Agent', which includes a 'Consignment Agent'. The adjudicating authority confirmed the demand of tax and imposed penalties along with interest. Commissioner (Appeals) upheld the adjudication order. 2. The learned Counsel on behalf of the appellant submits that the appellant was rendering services as commission agent to sell blended tea on behalf of their principals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ban.) He also contested the demand of tax on limitation. He submits that there is no suppression of facts with intent to evade payment of tax. He further, submits that the impugned order was passed on the basis of the decision of the Tribunal in the case of Prabhat Zarda Factory (India) Ltd. vs. CCE, reported in 2002 (50) RLT 326 (CEGAT-Kol.)=2002 (145) ELT 222 (Tribunal) which was over ruled by the Larger Bench of the Tribunal in the case of Larsen & Toubro Ltd. vs. CCE, reported in 2006 (75) RLT 186 (CESTAT-LB)=2006 (3) STR 321 (Tri.-LB). Therefore, demand of tax for the extended period of limitation cannot be sustainable. He relied upon the decision of the Tribunal in the case of Mahavir Generics vs. CCE, Bangalore, reported in 2004 (63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 365 (SC) He also relied upon the decision of the Tribunal in the case of Vijay Enterprises vs. CCE, reported in 2007 (7) STR 339 (Tri.). He submits that the Larger Bench of the Tribunal in the case of Medpro Pharma Pvt. Ltd. vs. CCE, Chennai, reported in 2006 (75) RLT 193 (CESTAT-LB)=2006 (3) STR 355 (Tri.-LB) has held that clearing and forwarding operations cannot be segregated into "Clearing" and "Forwarding" as they fall in common category and, hence, all services of that category will be services provided by 'C & F Agent'. He also submits that the appellant has not disclosed their activities to the department with intent to evade payment of tax and, therefore, extended period of limitation would be invokable. 4. After hearing both si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on levy of service tax and issued various circulars and trade notices clarifying scope of C&F operations. It is contended that the appellants had not made any inquiry with the department for levy of tax, which indicates the clear case of suppression of facts with intention to evade payment of tax. 5. We are unable to accept the submission of the learned SDR. We have already discussed that there are conflicting decisions on the levy of tax. It is seen that the Tribunal in the case of Mahavir Generic (supra) held that the, products of principal are supplied to the appellants on consignment basis and the appellants sell to customer. Such an activity would not come within the service provided to client by a Clearing & Forwarding Agent. We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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