- (1.) Through this excise appeal filed under Section 35G of the Central Excise Act, 1944, the Appellant seeks to challenge the final order dated February 17, 2009 passed by the Central Excise and Service Tax Appellate Tribunal, New Delhi, rejecting appeal of the Appellant arising out of the order dated February 28, 2006 passed by the Commissioner (Appeals II), Jaipur, dismissing the earlier appeal of the Appellant, upholding the order-in-original dated October 7, 2005 passed by the adjudicating authority.
(2.) The contention of the Appellant is that the learned Tribunal as also the Appellate authority and the adjudicating authority have completely lost sight of the terms and conditions of the agreement executed between the Appellant and their principal which are similar to the terms and conditions laid down under para No. 7 of order in Mahavir Generics v. Commissioner of Central Excise Bangalore, 2004 170 ELT 78. This argument is also sought to be supported by judgment of the Principal Bench of the Tribunal in the matter of Kuldp Medicines P. Ltd. v. Commissioner of Central Excise Delhi III,2006 4 VST 69 (CESTAT-New Delhi) :, (2006) 1 STR 36. and reference to these decisions was specifically mentioned in the written submissions, apart from making oral submissions. The learned Tribunal failed to deal with those arguments. It is contended that the Appellant was appointed by the principal as agent for selling of goods of the principal. Goods were supplied by the principal at the premises of the Appellant, which were sold by the Appellant at the price fixed by the principal, by issuing invoices and at their own will. Payment was thereafter collected by the Appellant and remitted to the principal. In the event of delay in remitting payment, interest was to be born by the Appellant and for all these activities fixed commission was received by the Appellant from the principal. It cannot, therefore, be said to be a case of clearing and forwarding agency. It was simply a business auxiliary service with reference to para Nos. 17 to 21 of the agreement entered into between the parties and whatever activities of the Appellant were done merely as an agent of their principal. The Tribunal has wrongly relied upon its earlier judgment rendered in Naresh Kumar & Co. Pvt. Ltd. v. Commissioner of Service Tax, Kolkata, 2008 11 STR 578, and the facts of that case are completely distinguishable from the case of the Appellant. It is contended that the Appellants have not done clearing and forwarding services during the disputed period, rather the Appellants have rendered as services during the said period as "del credre" agent, which comes under the "commission agent" services. In this background, argument is that the impugned orders rejecting claim of the Appellants for refund of a sum of Rs. 84,051 are liable to be set aside and refund be ordered.
(3.) We have given our anxious consideration to the arguments noticed above and gone through the orders impugned in this appeal. What we find in the present case is that not only the adjudicating authority on analysis of the terms and conditions contained in the agreement in question, rejected the contention of the Appellant that the services provided by it during the period in question are in the nature of "del credre" agent coming under the "commission agent" services and should, therefore, be considered as business auxiliary service, but the Appellate authority has also concurred with that view of the adjudicating authority. The adjudicating authority held that as per Clause (25) of Section 65 of the Finance Act, 1994, "clearing and forwarding agent" means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent. According to Section 65(105)(j) of the Act, "taxable service" means the services provided to a client, by a clearing and forwarding agent in relation to clearing and forwarding operations, in 'any manner. It is on that count that the adjudicating authority analyzed the activities normally undertaken by the clearing and forwarding agent. It also considered the question as to what would be the "auxiliary service" and held that the services as commission agent are considered as business auxiliary service. Services of commission agent have been exempted from service tax with effect from July 1, 2003 vide notification dated June 20, 2003. In that notification "commission agent" has been defined as a person who causes sale or purchase of goods on behalf of another person for a consideration, which is based on the quantum of such sale or purchase. Adjudicating authority then made a distinction between commission agent and consignment agent and held that services of consignment agent are taxable under the category of clearing and forwarding services. The services provided by the consignment agent are different from those provided by the commission agent. A consignment agent's job is to receive the goods from the principal and dispatch them on the directions of the principal, whereas a commission agent's job is to cause sale and purchase on behalf of another person. The adjudicating authority relied on the judgment of the Tribunal in Prabhat Zarda Factory (India) Ltd. v. Commissioner of Central Excise Patna, 2002 145 ELT 222 and in the case of Mahavir Generics , (2004) 170 ELT 78 . The Appellate authority has also discussed in detail the law relating to these two categories and has concurred with the view expressed by the adjudicating authority. It is thereafter that the Tribunal by the impugned order dated February 17, 2009, while upholding those two orders, held that the nature of activities carried out by the Appellant shows that they were receiving goods from their principal and also delivered the goods so received to serve the interest of principal itself and that there were several judgments of the Tribunal to hold that those activities are clearing and forwarding services. The Tribunal has also taken note of its earlier judgments in Naresh Kumar's case , (2008) 11 STR 578 wherein there was detailed analysis of law relating to "clearing and forwarding services". It held that for determining this question, the nature of characteristics of agreement entered into between the parties is decisive to come to the conclusion as to whether or not, it may amount to clearing and forwarding agency. In our considered view, the Tribunal on consideration of legal as also factual aspect of the matter rightly held that as per the CBEC circular dated July 11, 1997 very nature of the activity of the present Appellant falls within the category of clearing and forwarding agency.;