At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
By, MEMBER AND THE HONORABLE JUSTICE: MADHU MOHAN DAMODHAR
For Petitioner: Arul C. Durairaj, Superintendent (A.R.)
1. The respondents were issued a SCN alleging non-payment of Service Tax under the category of "Clearing and Forwarding" services. Brief facts are that during the course of audit for the period April 1999 to February 2001, it was noticed from the Balance Sheet that respondents rendered handling of cargo for M/s. MMTC and collected an amount towards handling charges. The department was of the view that the respondents are liable to pay Service
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Tax on the wheat handling charges under the category of clearing and forwarding agency services. SCN was issued proposing to recover Service Tax along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand, interest and imposed penalties. In appeal, the Commissioner (Appeals) set aside the same. The department is thus before the Tribunal.
2. On behalf of the department, Ld. AR, Shri Arul C. Durairaj, Supdt., reiterated the grounds of appeal. He submitted that the Commissioner (Appeals) has erred in holding that the services cannot be classified under clearing and forwarding service. The respondent was providing storage facilities of wheat and therefore the services provided would fall under the category of clearing and forwarding services and not under the category of cargo handling services as contended by the respondents. The respondents had been appointed by M/s. MMTC to carry out the services as per the contract entered between them. Thus, the respondents had to make arrangements to receive/delivery of goods on behalf of MMTC from the nominated godowns; to co-ordinate the activities after receipt of delivery order including identification of goods with inspection agencies/representative of buyer; should arrange transportation of goods from depots nominated by MMTC after weighment; is responsible for safe transportation of goods; should arrange transportation after inspection and weighment for shipment to port/wharf; should arrange labour/trucks for loading goods into the rake/ship in time; should ring back goods rejected by the surveyor to MMTC's godown for temporary storage'; should arrange temporary storage of goods in godown at the port before loading into the vessel; before loading of consignment it is the responsibility of VA to arrange for vessel inspection and fumigation; should prepare and file with the concerned authorities the documents relating to exports like shipping bill, GR forms and invoices and obtain customs clearance/clean bill of lading on shipment. The collective services done by the respondents fall under the category of clearing and forwarding agent service for which they have received the handling charges. That the view taken by the Commissioner (Appeals) regarding the classification of the services requires to be set aside.
3. None appeared on behalf of the respondent though notice was issued. The appeal is taken up for disposal after hearing the Ld. AR and after perusal of records.
4. The respondent has filed cross-objections. They have stated that their activities are not classifiable under Clearing and Forwarding services. That they were manufacturers of HDPE sacks and apart from the above activities they also undertake various trading activities such as Stevedoring, Salt trading, Transport, Dun peas trading etc. In the SCN there was no whisper with regard to the classification of the activities as clearing and forwarding services. On perusal of the records, we do find merit in the contention put forward by the respondent in their cross-objections. The sum total of the activities rendered by the respondents show that they are holders of Stevedoring licence and were engaged in transportation and custom house handling works. Thus, they have entered into a composite agreement for facilitating export of wheat by MMTC from the godowns of FCI. Their functions include identification of goods to be exported in coordination with the buyers, transportation of the goods and also to provide temporary storage of the goods. The very fact that the respondents are obliged not to provide temporary storage alone but rendering of custom house handling work etc., would show that their activities cannot be classified under clearing and forwarding service. The impugned order passed by the Commissioner (Appeals) in our view does not call for any interference. The appeal filed by the department is devoid of merits and the same is dismissed.
(Operative part of the order pronounced in the open Court