9911796707
TMI Blog2009 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... he category 'Clearing and Forwarding Agents' availed from marketing agents employed by the respondents during the period October, 1997 to August, 1999 as per the following details: Order-in-Original No. & Dt. Material period Amount demanded Rs. 8/2003 dt. 30-4-2003 1-10-1997 to 31-8-1999 57,770 9/2003 dt. 22-5-2003 1-1-1998 to 31-8-1999 5,62,659 In the impugned order the Commissioner (Appeals) examined in detail the nature of services received by the respondents from its marketing agent, namely M/s. Abirami Associates for the period 1-10-1997 to 31-8-1999 and the agreement governing the provision of services to the respondents (Order-in-Original No. 8/2003, dated 30-4-2003). He observed that the agreement with M/s. Abirami Associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents did not require the marketing agents to perform any of these functions. Accordingly, he held that the respondents were not liable to pay service tax in respect of M/s. Abirami Associates and three others, namely M/s. Industrial Chemical Agency, M/s. Bharat Mercantile Corporation and M/s. Krishna Trading Company (Order-in-Original No. 9/2003, dated 22-5-2003) during the respective periods in view of the fact that the sole function of these marketing agents was to book orders for the respondents' products and they were not C& F Agents as envisaged in section 65(23) of the Finance Act, 1994 ('the Act'). 2. In the appeal filed by the revenue strong reliance is placed on the various clauses of the agreement between the marketing agents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s availed by the respondents during 10/97 to 8/99 were not exigible to service tax. 3. We have heard both sides. We find that Commissioner (Appeals) vacated two demands confirmed against the respondents towards services classifiable under "Clearing and Forwarding Agents" availed during the material period from a few marketing agents. The scope of the service C&F Agents was explained by the Board in its Circular F.No. B.43/7/97-TRU, dated 11-7-1997 in paragraph 2.2 of which the same were enumerated as follows:- "2.2 Normally, there is a contract between the principal and the clearing and forwarding agent dealing with the terms and conditions and also indicating the commission or remuneration to which the clearing and forwarding agent is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissionerate (equivalent to CBEC Circular dated 11-7-1997) directly or indirectly. The Commission Agent engaged to procure orders and not entrusted with the work of clearing and forwarding of the goods would be a person, who in the ordinary course of business made contract for sale or purchase of the goods for others. The definition of "Commission Agent" under section 2(aaa) of the Central Excise Act, 1944 would apply in or in relation to service tax as it applied to duty of excise by virtue of sub-section (2) of section 65 of the Act. Services of Commission Agents were included in the definition of BAS under sub-section (19) of section 65 of the Act with effect from 2003 which included, service of the Commission Agent The activity of mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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