Mere procurement of orders for the principal on commission basis does not amounts to C&F services.

PJ/Case Law/2013-14/1613

Case:- M/s MALHOTRA DISTRIBUTORS PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI-I

Citation:- 2013-TIOL-898-CESTAT-MUM

Brief facts:- The appeal is directed against Order-in-Appeal No. BR(70)9/STC/2006 dated 13.12.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai. The appellant M/s Malhotra Distributors Pvt Ltd. (MDPL) entered into an agreement with M/s Vidyut Metallics Ltd. (VML) for rendering assistance in the marketing of goods produced by the latter by obtaining orders and also ensuring that the goods are sold at the terms and discounts as specified by VML. For the services rendered, they were getting a commission from M/s VML. The department was of the view that the services rendered by the appellant is classifiable under the category of ‘Clearing and Forwarding Services' and accordingly, a Service Tax demand of Rs.61,16,009/- was confirmed for the period October, 1998 to September, 2000 along with interest thereon. Penalties under Section 76, 77 and 78 of the Finance Act, 1994 were also imposed on the appellant. The appellant preferred an appeal before the lower appellate authority, who vide the impugned order dismissed their appeal and hence, the appellant is in appeal to the tribunal.

Appellant’s contention:- The learned Counsel for the appellant submits that as per the agreement entered into M/s VML, they were procuring the orders for the goods from the stockists and were forwarding the same to the manufacturer for which they get a commission @3.7% of the net sale value from M/s VML. They rendered only services relating to marketing of the goods and did not deal with the goods in any manner and as per the circular issued by the CBE&C vide Circular No. 87/97/10/Service Tax/97 issued in July, 97, the scope of clearing and forwarding service has been clarified as follows:-

Normally, there is a contract between the principal and the clearing and forwarding agent detailing the terms and conditions and also indicating the commission or remuneration to which the C&F agent is entitled. A clearing and Forwarding agent normally undertakes the following:-

(a) Receiving the goods from the factories or premises of the principal or his agents;

(b) Warehousing these goods;

(c) Receiving despatch orders from the principal

(d) Arranging despatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal;

(e) Maintaining records of the receipt and dispatch of goods and the stock available at the warehouse;

(f) Preparing invoices on behalf of the principal."

They have undertaken none of the above activities and, therefore, the services rendered by them do not come under the category of ‘Clearing and Forwarding Services.

The learned Counsel further submits that both the adjudicating and appellate authority while classifying the services under the category of Clearing & Forwarding Agency services, have relied on the decision of the Tribunal in the case of M/s Prabhat Zarda Factory (India) Ltd. Vs. Commissioner of Central Excise - 2002 (145) ELT 222 (Tri-Kol)while concluding that the services rendered by the appellant was that of clearing & forwarding agency. However, the said decision has been overruled by the Larger Bench of this Tribunal in the case of L&T Ltd. - 2006 (3) STR 121 (Tri-LB)wherein the Tribunal held that procuring purchase orders for the vendor on a commission basis would not amount to clearing and forwarding agency service and, on the other hand, would come under the category of Business Auxiliary Service, which is brought into the tax net from 1.3.2003 onwards. In view of the decision of the Larger Bench, the service rendered by the appellant is not classifiable under Clearing & Forwarding Agency Services. The learned Counsel also relies on the decision of Punjab & Haryana High Court in the case of United Plastomers reported in 2008 (10) STR 229 (P&H), decision of the Tribunal in the case of Shivangi Steel Pvt. Ltd. reported in 2011 (24) STR 701 (Tri-Del)and the decision of this Tribunal in the case of Energy Equipment Distributor vide Order No. A/48/WZB/2007/CSTB/C-I dated 22.1.2007wherein it has been held that mere procuring/booking of orders for the principal by an agent on commission basis would not amount to providing services of Clearing & forwarding agent. In the light of the above, he pleads for allowing the appeals.

Reasoning of Judgement:- As per Section 65(105)(j) Clearing & forwarding Agency Services has been defined as under:-

"Any services provided or to be provided to any person by a clearing and forwarding agent in relation to clearing and forwarding operations in any manner."

As per Section 65(25) ‘Clearing & Forwarding Agent' means any person who is engaged in providing any services directly or indirectly, connected with Clearing & Forwarding in any manner to any person and includes a consignment agent. The CBE&C vide Circular dated July, 1997 (cited supra) had clarified the scope of the services undertaken by the clearing & forwarding agent. The clarification provided clearly says that such agent should receive the goods, warehouse the goods and arrange for the dispatch of the goods as per directions of principal and also maintain a record of receipt and dispatch and also at time prepare invoices on behalf of the principal. In the present case, the authority has gone through the agreement entered into between the appellant and M/s VML. The agreement says that the appellant has to procure the orders from the stockists and forward the same to M/s VML. Further, the appellant has to ensure that the goods are sold at the terms and discounts specified in writing by VML from time to time. For the services so rendered, M/s VML shall be charged @ 3.7% on the net sale value. Thus, from the terms and conditions entered into by the appellant, it is clear that the appellant was acting as a commission agent by procuring the orders for the sale of the goods. The appellant did not deal with the goods at all as is expected in the case of Clearing & Forwarding Agent. The Larger Bench of this Tribunal in the case of M/s L&T Ltd. (supra) held that an agent engaged only for procuring purchase orders for the vendor on commission basis, is not engaged in the clearing and forwarding activity either directly or indirectly and, therefore, mere procuring or booking orders for the principal by an agent on commission basis would not amount to providing services as clearing and forwarding agent within the meaning of the definition of that expression under section 65(25) of the Finance Act, 1994. The Hon'ble High Court of Punjab & Haryana in the case of United Plastomers (supra), has also held that mere procuring of orders on commission basis does not amount to ‘Clearing & Forwarding Agency Service'. The same view was held by the Hon'ble High Court of Karnataka in the case of OKS Specialities Lubricants Pvt. Ltd. - 2009 (16) STR 403 (Kar). Subsequently, this Tribunal itself in a number of cases like, Shivangi Steel Pvt. Ltd. and Energy Equipment Distributor etc. followed the decision of the Larger Bench and the decision of Hon'ble High Court of Punjab & Haryana and Karnataka. Following these decisions and taking into account the facts and circumstances of the present case, we are of the view that the services rendered by the appellant does not fall within the taxable service category of Clearing & Forwarding Agency Services.

Accordingly,it isdecided to set aside the impugned order and allow the appeal with consequential relief.

Decision:- Appeal allowed.

Comment:- The essence of this case is that for classifying any service to be Clearing and forwarding services, it is mandatory to satisfy the criteria laid down in the board circular and hence, mere booking or procuring orders on commission basis would not amount to providing C & F services.

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PJ/Case Law/2013-14/1613

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