CESTAT not right in holding that service provided by a consignment agent not covered by sec. 65(25) of Finance Act

When the assessee is a consignment agent, as the definition of C&F agent includes consignment agents, CESTAT was not right in holding that the service provided by a consignment agent is not covered by section 65(25) of the Finance Act, 1994.

 CASE LAWS DETAILS

DECIDED BY: HIGH COURT OF KARNATAKA, IN THE CASE OF: CST Vs. Sangam Investments, APPEAL NO: CEA No. 32/2006, DECIDED ON April 8, 2010

FACTS

The revenue has come up in this appeal being aggrieved by the order passed by the CESTAT in Appeal No.ST/08/2004 dated 18.8.2005 in Final Order Nos.1531/2005 and 1532/2005 and Misc.Order No.523 and 524 raising the following substantial questions of law:

i) Whether the CESTAT is right in holding that the service provided by a consignment agent/respondent is not covered by the clause 25 of Section 65 of the Finance Act, 1994?

HELD

However, the respondent-assessee contends that the assessee is not discharging its duty as a consignment agent, but it is a commission agent. On a perusal of the order passed by the original authority and the order passed by the first appellate authority and also the order of the tribunal, it is clear to us that the assessee did not contend that it is not a consignment agent and that it is not liable to pay the tax. All the authorities have proceeded on the premises that the assessee is a consignment agent and relying upon Sub-section 25 of Section 65 of the Finance Act 1994, the original authority has passed the order holding that the assessee is liable to pay the service tax. When the assessee is a consignment agent, as the definition of C & F agent includes consignment agents as held in the case of Mahavir Generics, we answer all the questions in favour of the revenue and against the assessee. Accordingly, this appeal is allowed and the order of the tribunal is hereby set aside.

JUDGEMENT

The revenue has come up in this appeal being aggrieved by the order passed by the CESTAT in Appeal No.ST/08/2004 dated 18.8.2005 in Final Order Nos.1531/2005 and 1532/2005 and Misc.Order No.523 and 524 raising the following substantial questions of law:

i) Whether the CESTAT is right in holding that the service provided by a consignment agent/respondent is not covered by the clause 25 of Section 65 of the Finance Act, 1994?

ii) Whether the CESTAT is legal and correct in applying the ratio of the judgment rendered in the case of Mahavir Generics to the present case, when the said order has been appealed against before this Hon’ble High Court and the decision is pending.

iii) Whether the Hon’ble CESTATs finding that the activity of Consignment Agent/Respondent has been brought within the service tax net only with 1.7.2003 is legal and correct?

2. We have heard the learned counsel for the parties.

3. The CESTAT has granted relief to the respondent- assessee herein by relying upon the judgment of the tribunal rendered in Mahavir Generics case. The judgment of the CESTAT rendered in Mahavir Generics case was taken up in appeal by the revenue before this court in CEA.No.6/2004 and this court on 24.11.2009 has reversed the finding of the tribunal. Therefore, the learned counsel for the revenue submits that, in view of the reversal of the judgment of CESTAT in Mahavir Generics’ case in CEA.No.6/2004, the questions raised in this appeal have to be answered in favour of the revenue and against the assessee. This fact is not disputed by the learned counsel for the respondent- assessee.

4. However, the respondent- assessee contends that the assessee is not discharging its duty as a consignment agent, but it is a commission agent. On a perusal of the order passed by the original authority and the order passed by the first appellate authority and also the order of the tribunal, it is clear to us that the assessee did not contend that it is not a consignment agent and that it is not liable to pay the tax. All the authorities have proceeded on the premises that the assessee is a consignment agent and relying upon Sub-section 25 of Section 65 of the Finance Act 1994, the original authority has passed the order holding that the assessee is liable to pay the service tax. When the assessee is a consignment agent, as the definition of C & F agent includes consignment agents as held in the case of Mahavir Generics, we answer all the questions in favor of the revenue and against the assessee. Accordingly, this appeal is allowed and the order of the tribunal is hereby set aside.