Case Law Details
M/s. Tinplate Company of India Limited Vs Commissioner of Central Excise & Service Tax (CESTAT Kolkata)
Conclusion: Assessee adid not receive any amount from TSL as and by way of consignment agent or towards providing any consignment agency service under the consignment agency agreement and also, assessee had cleared the converted goods on payment of central excise duty and charges for freight was included in the invoice value, therefore, no service tax was leviable on assessee on the consignment agency services under the category of “clearing and forwarding agent service”.
Held: Commissioner had confirmed service tax demands of Rs.8,86,82,006.09 and Rs.2,37,88,670.00 respectively against assessee, under the Proviso to Section 73(1) of the Finance Act, 1994, along with interest in terms of Section 75. Penalties of Rs.9.00 crores and Rs. 2,37,88,670/- respectively under Section 78 and Rs. 5000/-and Rs. 10,000/- respectively under Section 77 had also been imposed upon assessee. The issue arose for consideration was related to leviability of service tax on the consignment agency services under the category of “clearing and forwarding agent service” alleged to have been rendered by assessee to Tata Steel Limited (“TSL”). In all the 10 show cause notices it was alleged that assessee had received consignment agency charges of Rs.250.00 and Rs. 275.00 respectively as per the agreement from TSL but had failed to discharge proper service tax on the same. It was held that although assessee had entered into the consignment agency agreement with TSL this agreement was never acted upon by the parties. Assessee also did not receive any amount from TSL as and by way of consignment agent or towards providing any consignment agency service under the said consignment agency agreement. No evidence to the contrary was available from either the show cause notices or the impugned orders. Also, Department had not disputed the fact that assessee had cleared the converted goods on payment of central excise duty and that the charges for freight was included in the invoice value. Hence following the decision in Commissioner of Central Excise Vs. Kulcip Medicines (P) Ltd., 2009 (14) STR 608 (P&H), it was held that the order of Commissioner were erroneous and unsustainable.
FULL TEXT OF THE CESTAT KOLKATA ORDER
These batch of appeals are against two adjudication orders bearing Nos. 01-8/S.Tax/Commr/2011 dated January 23, 2011 and 01-02/S.Tax/Commr/2013 dated January 15, 2013 both passed by the Commissioner of Central Excise & Service Tax, Jamshedpur. The periods involved are from 01.05.2006 to 31.01.2011 and from 01.02.2011 to 31.12.2011 respectively.
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