Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs And Central ... vs Trade Tek Corporation on 1 March, 2005
Equivalent citations: 2005(186)ELT227(TRI-MUMBAI), 2006[3]S.T.R.598
ORDER
Jyoti Balasundaram, Vice President
1. The above appeal arises out of the order of the Commissioner (Appeals) who has held that service tax is not leviable on the respondents herein as they are not providing services to client as clearing and forwarding agent in relation to clearing and forwarding operations, relying upon Tribunal's order in Mahavir Generics v. CCE, Bangalore [2004 (170) ELT 78].
2. We have heard both sides, the respondents herein act as consignment agent of M/s. Bharat Aluminum Co. Ltd.(hereinafter referred to as "BALCO") for sale of BALCO's Aluminium semi finished products. The department was of the view that they were engaged in activity of consignment agent. Since they had not obtained service tax registration and had also failed to file ST3 returns, Show Cause Notice dt.27.3.2003 was issued proposing recovery of service tax of Rs. 1,11,585/- under Section 68 of the Finance Act together with interest of Rs. 29,821/- under Section 78 of the Act, and proposing imposition of penalty under Section 76,77 & 78 for contravention of the provisions of Section 68,69 and 70 of the Finance Act, 1994. The adjudicating authority confirmed the demand and imposed penalty of equal amount under Section 76 & 78 and a penalty of Rs. 500/- under Section 77; the Commissioner (Appeals) set aside the demand and penalty on the basis of Tribunal's order in Mahavir Generics cited Supra; hence this appeal by the Revenue.
3. We find that in identical circumstances where terms and conditions between M/s. Cipla Ltd. and Mahavir Generics were similar to the terms and conditions between BALCO and the present respondents, the Tribunal has held that Mahavir Generics was not acting as a clearing and forwarding agent, but was acting only as consignment agent. It was held that since Mahavir Generics was not providing taxable service as clearing and forwarding agent, the demand of service tax was not sustainable. Ld. SDR has not been able to distinguish the above judgment with reference to the clauses of the agreement between BALCO and Trade Tek Corporation. Therefore ratio of the Mahavir Generics order is applicable on all fours to this case. Following the ratio thereof we uphold the impugned order and reject the appeal.
(Operative part pronounced in Court)