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whether such services provided by them would label them as Clearing & Forwarding Agents (for short, 'C&F Agents') and, thus, make them liable to service tax in accordance with the Finance Act, 1994 (hereinafter referred to as the 'Act'), as amended from time to time.= Movement of the coal is under the contract of sale between the coal company and Ambuja companies. Even the coal is loaded on to the railway wagons by the coal company. The goods are not under any legal detention from which they need to be freed by the appellant. Not only this, destination of the goods is known to the coal company and the railway rakes are placed by the coal company for the said destinations. The destination is the factories of the principal itself, namely, Ambuja companies, where the coal is to be delivered by the coal company as per pre- determined/agreed covenants between them. Therefore, there is no occasion for Ambuja companies to instruct the appellant to dispatch/forward the goods to a particular destination which is already fixed as per the contract between the coal company and the Ambuja companies. The appellant does not even undertake any loading operation. The primary job of the appellant, as per the contract between the appellant and the Ambuja companies, is of supervising and liaisoning with the coal company as well as the Railways to see that the material required by Ambuja companies is loaded as per the schedule. At no stage custody of the coal is taken by the appellant or transportation of the coal, as forwarders, is arranged by the appellant. We are, thus, of the clear opinion that the services rendered by the appellant would not qualify as C&F Agent within the meaning of Section 65(25) of the Act.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7215 OF 2004


|M/S. COAL HANDLERS PRIVATE LIMITED          |.....APPELLANT(S)          |
|VERSUS                                      |                           |
|COMMISSIONER OF CENTRAL EXCISE              |                           |
|RANGE KOLKATA – I                           |.....RESPONDENT(S)         |

                                   W I T H
                        CIVIL APPEAL NO. 5159 OF 2013

                                    A N D

                        CIVIL APPEAL NO. 9967 OF 2014


                               J U D G M E N T


A.K. SIKRI, J.
CIVIL APPEAL NO. 7215 OF 2004
CIVIL APPEAL NO. 5159 OF 2013

                 Appellants in both these appeals are the assessees and  the
issue involved in these appeals is  common.   Both  the  appellants  provide
certain services as Agents under the contracts signed with their  respective
Principals.  The issue is as to  whether  such  services  provided  by  them
would label them as Clearing & Forwarding Agents (for short,  'C&F  Agents')
and, thus, make them liable to service tax in accordance  with  the  Finance
Act, 1994 (hereinafter referred to as the 'Act'), as amended  from  time  to
time.  Since the issue to be decided in both the appeals  is  identical  and
also arises almost in the  same  factual  background,  it  would  serve  our
purpose if we reproduce the facts from Civil Appeal No. 7215 of 2004.

The appellant in this case is providing certain  services  as  Agent.   Such
services are provided to  M/s.  Gujarat  Ambuja  Cements  Limited  and  M/s.
Ambuja Cements Eastern Limited  (hereinafter  collectively  referred  to  as
'Ambuja companies').   At  the  material  time,  these  were  public  sector
undertakings under the Government of Gujarat.  These  industries  need  coal
as a raw material for production of cement, which is the main  manufacturing
activity undertaken by the said companies.  Industries that need coal  as  a
raw material generally approach the Ministry of  Industries,  Government  of
India with their requirements.  The Ministry of Industries,  after  enquiry,
recommends to the Ministry of Coal the  quantity  that  is  required  to  be
supplied to such industries.  Thereafter, the Ministry of Coal, as  per  the
norms prescribed, allots the coal to these industries through the Long  Term
Linkage Committee indicating the coal companies and the location from  which
coal can be made available to them.  While fixing the locations  from  where
the coal is to be supplied to  such  companies,  the  Committee  takes  into
account the Railways commitment for movement of the coal.  The  Railways  is
responsible for placing of  rail  rakes  according  to  the  programme.   To
maintain constant liaison with the Railways for the actual placing  of  coal
rakes, such companies generally appoint its Agents.   The  aforesaid  Ambuja
companies, for this purpose, had appointed the appellant  for  this  purpose
and a contract was entered into between the said Ambuja  companies  and  the
appellant.  Under this Agency  agreement,  the  appellant  was  required  to
undertake the following activities on behalf of the Ambuja companies:
(i)   following up the allotment of coal rakes by the Railways;

(ii)  expediting and supervising the loading and labeling of rail
      wagons;

(iii) drawing the samples of coal loaded on the wagons;

(iv)  complying with the formalities relating to payments for
      freight to the Railways; and

(v)   dispatching of rail receipts to Ambuja companies.


The issue that arose for consideration was as to whether aforesaid  services
were liable to service tax under the provisions of the  Act.   By  the  said
Act, sub-section (25) was inserted in Section 65, which  defines  C&F  Agent
as under:
“(25) “clearing and forwarding agent” means any person  who  is  engaged  in
providing any service, either directly or  indirectly,  connected  with  the
clearing and forwarding operations in any manner to  any  other  person  and
includes a consignment agent;”

                 We may also note that the taxable service  as  provided  in
Section 65(48)(j) of the Act in relation to service of C&F Agent means  'any
service provided to  a  client,  by  a  clearing  and  forwarding  agent  in
relation to clearing and forwarding operations in any manner'.

It so happened that the appellant had filed an application for  registration
in Form ST-I under Section 69 of Chapter V of the Act on November  17,  1999
for  the  service  of  'handling  agents'  (C&F  Agent).   Certification  of
Registration was granted on November  18,  1999.   Thereafter,  on  May  30,
2000, the appellant surrendered the said  Registration  Certificate  on  the
ground that services rendered by them were not covered by Section 65(25)  of
the Act. The  application  for  surrender  was,  however,  rejected  by  the
Superintendent  of  Central  Excise  (SCE),  Service  Tax  Cell,  Kolkata-I,
Commissionerate on February 08, 2001 by passing the  Order-in-Original.  The
SCE, in that order,  took  the  view  that  the  services  rendered  by  the
appellant under the  aforesaid  contract  with  Ambuja  companies  would  be
covered by Section 65(25) of the Act and,  therefore,  exigible  to  service
tax.  Aggrieved by the said order, the appellant preferred an appeal  before
the Commissioner of  Central  Excise  (Appeals),  Kolkata,  which  was  also
dismissed by  the  Commissioner  on  November  05,  2002.   This  order  was
challenged by the  appellant  before  the  Customs,  Excise  &  Service  Tax
Appellate Tribunal (for short, 'CESTAT').

The CESTAT has also dismissed the appeal by the  impugned  order  dated  May
24, 2004 by observing that the matter is covered by its own judgment in  the
case of M/s. Prabhat Zarda Factory (India) Ltd. v. Commissioner  of  Central
Excise, Patna[1].  The Tribunal has noted in this behalf that  in  the  said
case the Bench of the Tribunal had considered the definition  of  C&F  Agent
and has held that such definition was very wide and  includes  any  service,
even provided indirectly.  It was also noted  that  the  said  judgment  was
delivered on February 09, 2002  and  thereafter  Finance  Act  of  2003  was
introduced and the new service, viz. 'Business Auxiliary Service'  appearing
in Section 65(19) was introduced.   The  said  service  is  in  relation  to
promotion or marketing of service provided by the client; any customer  care
service provided on behalf of the client and  any  incidental  or  auxiliary
support  service  such  as  billing,  collection  or  recovery  of  cheques,
accounts and remittance,  evaluation  of  prospective  customer  and  public
relation services,  and  includes  services  as  a  commission  agent.   The
CESTAT, however, held that the activities undertaken by the  appellant  were
not covered by the expression 'Business Auxiliary  Service',  which  include
Commission Agents, and stand exempted from  service  tax  with  effect  from
July  01,  2003  vide  Notification  No.  13/2003  dated  June   20,   2003.
Therefore, no such exemption was  available.   The  relevant  paras  of  the
impugned order containing the aforesaid discussion are as under:
“5)  The appellants have agreed that the issue involved  stands  decided  in
the case of Prabhat Zarda Factory (India) Ltd. (Supra).  The Tribunal  under
the said judgment has observed  that  as  per  definition  of  clearing  and
forwarding agent, he is a person who is engaged for providing  any  service,
either  directly  or  indirectly  connected  with  clearing  and  forwarding
operations in any manner to any  other  person  and  includes  a  commission
agent.  The use of  the  expression  “any”  and  “indirectly”  in  the  said
definition of clearing and forwarding agent, is indicative of the fact  that
the scope of the services to be provided by clearing  and  forwarding  agent
is quite wide.  He is not only the person who is actually dealing  with  the
goods, which has to be termed as clearing and forwarding agent, but even  if
the services are indirect and if the same are connected  with  the  clearing
and forwarding operations in any manner of the other persons,  he  would  be
covered within the scope of the said  definition.   The  appellants  in  the
instant case render their services in all the sections of pre  load  of  the
coal rakes i.e. obtaining consent on behalf of  their  customers,  sanctions
from the office of Executive Director-Rail Movement, supervising loading  of
the wagons, sending samples and assuring the proper quality and  quantities,
complying with the formalities relating to payments for freight.   As  such,
it is quite clear that  the  appellant  is  covered  by  the  definition  of
clearing and forwarding agent, as interpreted by the Tribunal in  the  above
referred case of Prabhat Zarda.

6)  The appellants have alternative contention that they are covered by  the
new i.e. Business Auxiliary Service introduced vide  Finance  Act  of  2003.
However, we find that the said services are in the nature of promotional  or
marketing of the customers goods  or  in  the  nature  of  doing  the  other
routine type of jobs like billing or collection of cheques,  maintenance  of
accounts  and  evaluation  of  prospective  customers  and  public  relation
services.  The services being provided by the appellant  cannot  be  equated
to the above.  It is also seen that the expression  'commission  agent'  has
been explained by the Notification dated 20th June,  2003  reported  in  155
ELT N-171, vide paragraph 2.1.3 it has been clarified that C&F  agents  work
on commission basis do not fall under the definition of 'Business  Auxiliary
Service',  in  as  much  as  they  are  substantially  covered  within   the
definition C & F service.   It  has,  further,  been  clarified  that  under
Section 65A of Finance Act, 1994, it has also been provided that in case  of
overlap, a service would be classified under the head,  (a)  which  provides
most specific description,  (b)  in  case  of  a  composite  service  having
combination of different taxable  services,  the  service  which  give  them
their essential character and (c) in case the test of (a) and (b)  does  not
resolve, the service which comes earlier in the clauses of Section 65,  i.e.
the service that was subjected to  service  tax  earlier.   Since  Insurance
services and C & F Services are more  specific  description  and  were  also
subjected to service tax prior to imposition of tax  on  business  auxiliary
service, the insurance agents, C & F  agents  working  on  commission  basis
would fall under those respective categories.  From this, it follows that  a
particular service can be taxed only under one head of service.”


As is clear from the reading of  the  aforesaid  extracted  portion  of  the
order, the  Tribunal  has  rested  its  impugned  decision  on  its  earlier
judgment in the case of Prabhat Zarda (supra) and the reasons  contained  in
the said judgment are restated in support of the view taken by the  Tribunal
in the impugned judgment.

It so happened that the ratio of the decision in Prabhat Zarda  (supra)  was
doubted by another Bench of the Tribunal and the  said  Bench  referred  the
matter to the larger Bench.  On reference being made, the Full Bench of  the
Tribunal decided the issue and on the aforesaid aspect decision  in  Prabhat
Zarda (supra) has been overruled by it.  The judgment of the Full  Bench  is
known  as  Larsen  &  Toubro  Ltd.  v.  Commissioner  of   Central   Excise,
Chennai[2].  It gets revealed from the decision of  the  larger  Bench  that
after taking note of the  definition  of  'clearing  and  forwarding  agent'
(which has already been extracted above), the  larger  Bench  observed  that
the service should be connected with  clearing  and  forwarding  operations.
The 'clearing and forwarding' operations would be various activities  having
bearing on clearance of goods, which  would  involve  documentary  processes
and arrangements for transfer of goods to their destination,  which  process
may  also  involve  clearance  at  subsequent   stages   during   forwarding
operations.  In the opinion of the larger Bench, the procurer of  orders  on
commission  basis  renders  services  which  are  not  connected  with  such
clearing and forwarding operations, which have bearing on  the  movement  of
goods.   It  also  mentioned  that  normally  a  C&F  Agent  undertakes  the
following activities:
(i)   receiving the goods from the factories or premises of the
      principal or his agents;

(ii)  warehousing these goods;

(iii) receiving despatch orders from the principal;

(iv)  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;

(v)   maintaining records of the receipt and despatch of goods
      and the stock available at the warehouse; and

(vi)  preparing invoices on behalf of the principal.

Since the appellant in that case was engaged  only  for  procuring  purchase
orders for vendor on commission basis and was not  engaged  in  any  of  the
above activities, the larger Bench concluded that the services  provided  by
the said appellant would not fall within the  definition  of  'clearing  and
forwarding agent' as contained in the Act.  The detailed discussion on  this
aspect runs as follows:

“9.3  An agent engaged only for procuring purchase orders for the vendor  on
commission basis does not engage in any of the  above  activities,  directly
or indirectly. Commission agent engaged to procure orders and not  entrusted
with the work of clearing and forwarding of the  goods  would  be  a  person
who, in the ordinary  course  of  business,  makes  contracts  for  sale  or
purchase of goods for  others.  The  definition  of  "commission  agent"  in
Section 2(aaa) of the Central Excise Act, 1944, would apply in  relation  to
service tax as it applies in relation to duty of excise by  virtue  of  Sub-
section (121) or Section 65 of the Act. Services  of  commission  agent  are
included in the  definition  of  "business  auxiliary  service"  under  Sub-
section (19) of Section 65 w.e.f. 1-7-2003,  which  includes  service  of  a
commission agent. As defined in  Explanation  (a)  to  Sub-section  (19)  of
Section 65 commission agent is a  person  who  acts  on  behalf  of  another
person and causes sale or purchase of goods,  or  provision  or  receipt  of
services, for consideration, and includes any person who,  while  acting  on
behalf of another person: deals with  goods  or  services  or  documents  of
title to such goods or services; or collects payment of sale price  of  such
goods or services; or guarantees for collection or payment  for  such  goods
or services; or undertakes any activities relating to such sale or  purchase
of such goods or services. This clearly shows  that  the  activity  of  mere
procurement of purchase orders for the principal on commission  basis  of  a
commission  agent  is  treated  separately  by  the  Parliament   from   the
activities of a clearing and forwarding agent. Activity of procuring  orders
is thus independent of clearing and forwarding operations. The agents  doing
these  activities  can  be  different.  Moreover,  clearing  and  forwarding
operations do not flow directly  or  indirectly  from  mere  procurement  of
orders. There  is  no  obligation  on  the  person  procuring  orders  as  a
commission agent for the principal, only by virtue of that agency, to  carry
out clearing and forwarding operations in respect of the goods which are  to
be supplied pursuant to the orders so procured.


10. It appears to us that the expressions "directly or indirectly"  and  "in
any manner" occurring in the definition of "clearing and  forwarding  agent"
cannot be isolated from the activity of clearing and forwarding  operations.
A person may undertake to provide service of procurement of orders as  agent
of the principal without  agreeing  to  provide  services  of  clearing  and
forwarding of the  goods.  Clearing  and  forwarding  has  a  very  specific
connotation in the context of movement of goods from the supplier  to  their
destination and agents undertaking clearing and  forwarding  operations  may
never have been concerned with procurement of orders  for  the  goods  which
are cleared and forwarded. A person entrusted with the  work  of  commission
agent  for  procuring  orders  for  the  principal  cannot  insist  on  also
providing services as clearing and forwarding  agent  in  respect  of  those
goods and it would be open for the principal to  engage  some  other  person
for the purpose of forwarding such goods. In cases where the buyer is  under
an obligation to take delivery of the  goods  from  the  vendor's  premises,
there would not be even any need on the part of the  vendor  to  engage  any
forwarding agent, nor can a person engaged for the purpose of  clearing  and
forwarding operations, insist on procuring orders for the principal  in  the
absence of any stipulation to that effect.

11. We, therefore, hold that  mere  procuring  or  booking  orders  for  the
principal by an agent on payment of 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, as has been held in the  decision  of  the  Tribunal  in  Prabhat
Zarda Factory (Pvt.) Ltd. v. CCE Patna reported in 2002  (145)  ELT  :  2002
(50) RLT 326 (CEGAT-KOL.). The decision  in  Prabhat  Zarda  Factory  (Pvt.)
Ltd. stands overruled to  the  extent  of  the  aforesaid  ratio  laid  down
thereunder. The reference is answered accordingly. All  these  appeals  will
now be placed before the concerned Division Bench for decision on merits  in
the light of this judgment and in accordance with law.
                                                           (emphasis added)”
Significantly, the Revenue accepted the aforesaid decision in  the  case  of
Larsen & Toubro (supra) and did not  file  any  appeal  thereagainst.   Even
otherwise, we find that the larger Bench of the Tribunal in  the  said  case
has rightly interpreted the definition of 'clearing  and  forwarding  agent'
contained in Section 65(25)  of  the  Act.   Notwithstanding  the  aforesaid
dicta of the larger Bench, learned senior counsel appearing for the  Revenue
submitted that judgment in Prabhat Zarda  (supra)  has  not  been  overruled
entirely, as is clear from the reading of para 11 of the judgment where  the
larger Bench has said that Prabhat Zarda (supra) 'stands  overruled  to  the
extent of the aforesaid ratio laid down thereunder'.  His endeavour  was  to
demonstrate that in the present case the Tribunal in the  impugned  judgment
had rightly  relied  upon  Prabhat  Zarda  (supra)  and  when  the  services
rendered by the appellant are looked into, it would clearly fall within  the
definition of 'clearing and forwarding agent' contained  in  Section  65(25)
of the Act.
            Let us, therefore, examine  whether  services  rendered  by  the
appellant would qualify it as C&F Agent?

It would be relevant to point out the definition of 'forwarding  agent',  as
known in legal parlance, from  Black's  Law  Dictionary  (Seventh  Edition),
which is as under:
“forwarding agent. 1. A person or company whose business is to  receive  and
ship goods for others –  Also  termed  freight-forwarder.   2.   A  freight-
forwarder who assembles less-than-carload shipments 'small  shipments'  into
carload shipments, thus taking advantage of lower freight rates.”

                 The Penguin Business Dictionary defines this expression  in
the following words:
“Forwarding agent.  A GENERAL AGENT who specializes in moving goods  from  a
factory or port of  entry  to  their  proper  destination.   Such  an  agent
normally owns the transport necessary  for  this  work  and  often  arranges
FREIGHT and customs formalities for his principal.”

                 In Fourth Edition of Halsbury's  Laws  of  England  (Volume
5),  the  characteristics  of  'forwarding  agents'  are  narrated  in   the
following manner:
“442.  Characteristics of forwarding agents.  A forwarding agent is one  who
carries on the business of arranging for the  carriage  of  gods  for  other
people.  It must be clearly understood that a forwarding agent  is  not,  in
general, a carrier: he does not obtain possession of the goods: and he  does
not undertake the delivery of them at the other end.  All that  he  does  is
to act as agent for the owner of the goods to  make  arrangements  with  the
people who do carry, such as shipowners, road hauliers, railway  authorities
and air carriers, and to make arrangements, so far as  they  are  necessary,
for the intermediate steps between the ship and the  rail,  the  customs  or
anything else.

            Although there is  a  clear  distinction  between  a  forwarding
agent and a carrier, the same person may carry on both activities  at  once,
and contract sometimes as one and sometimes as the other.  The fact  that  a
person describes himself as a forwarding agent is not conclusive: and it  is
a question of fact to be decided according  to  the  circumstances  of  each
case whether a person normally carrying on business as  a  forwarding  agent
contracts solely as agent so as  to  establish  a  direct  contractual  link
between his customer and a carrier (or possibly with several carriers,  each
undertaking a different part of the transit), or  whether  he  contracts  as
principal to carry  the  goods,  the  customer  appreciating  that  he  will
perform the contract vicariously through the employment of  sub-contractors.
 The nature of the carriage, the language used by the parties in  describing
the role of the person concerned, and any  course  of  dealing  between  the
parties will be relevant factors.

            Persons properly described as  shipping  and  forwarding  agents
frequently act as carriers themselves with respect to part of the  carriage,
for example, by performing collection  and  delivery  services  between  the
customers' premises, their own depots, and warehouses, docks  and  carriers'
depots.  In such cases they would have the rights  and  duties  of  carriers
with respect to such carriage as they undertake personally, but  the  rights
and duties of forwarding  agents  with  respect  to  the  remainder  of  the
transit.

443.   Rights  and  liabilities  of  forwarding  agents.   The  rights   and
liabilities of a forwarding agent are governed by the general principles  of
the law of agency: and so he is  entitled  to  be  indemnified  against  all
expenses incurred on behalf of his principal  and  to  be  paid  his  proper
charges for  his  services.   He  is  liable  for  failure  to  make  proper
arrangements for the  carriage  and  for  ancillary  matters  which  he  has
undertaken, such as customs clearance.  He is not liable  for  the  failings
of persons with whom he makes contracts on behalf of his  principal,  unless
he know of those failings and ought to have taken action  either  to  remedy
them or at least to inform his principal so that damage might be avoided  or
mitigated: thus he  is  under   no   duty   to   supervise  the  actions  of
carriers

whom he reasonably and properly expects to perform their normal  obligations
competently.

            In ordinary transactions a forwarding agent is  not  liable  for
failing to insure the  goods,  in  the  absence  of  instructions  from  his
customer to do so: but he may, in certain circumstances, be liable  for  not
consulting his customer and advising him as  to  the  proper  transport  and
insurance arrangements which should be made for valuable goods.

            A forwarding agent is not normally personally liable to pay  the
charges of carriers whom he engages to carry  the  gods  on  behalf  of  his
principal; but  there  is  a  custom  of  the  London  freight  market  that
forwarding agents incur personal liability to shipowners for the payment  of
freight or of dead freight for booked space left unfilled.

            A forwarding agent  who  tenders  dangerous  goods  to  carriers
without warning them of their nature or of the precautions which  should  be
taken in their carriage  is  personally  liable  to  the  carriers  for  any
resulting damage through breach of the implied warranty that the  goods  are
fit for carriage.”

From the reading of the definition contained  in  the  aforesaid  provision,
together with its dictionary meanings  contained  in  Legal  and  Commercial
dictionaries, it becomes apparent that in order to qualify as a  C&F  Agent,
such a person is to  be  found  to  be  engaged  in  providing  any  service
connected with 'clearing and forwarding operations'. Of course, once  it  is
found that such a person is providing the services which are connected  with
the clearing and forwarding  operations,  then  whether  such  services  are
provided directly or indirectly would be  of  no  significance  and  such  a
person would be covered by the definition.  Therefore, we have to see as  to
what would constitute clearing and forwarding operations.  As is clear  from
the plain  meaning  of  the  aforesaid  expression,  it  would  cover  those
activities which pertain to clearing of the goods and thereafter  forwarding
those goods to  a  particular  destination,  at  the  instance  and  on  the
directions of the principal.  In the context  of  these  appeals,  it  would
essentially include getting the coal cleared as an agent on  behalf  of  the
principal from the supplier of the coal (which would mean collieries in  the
present case) and  thereafter  dispatching/  forwarding  the  said  coal  to
different destinations as per the instructions of  the  principal.   In  the
process, it may include warehousing  of  the  goods  so  cleared,  receiving
dispatch orders from the principal, arranging dispatch of the goods  as  per
the instructions of the principal  by  engaging  transport  on  his  own  or
through the transporters  of  the  principal,  maintaining  records  of  the
receipt and dispatch of the goods and the stock available on the  warehouses
and preparing invoices on behalf  of  the  principal.     The  larger  Bench
rightly enumerated these activities which  the  C&F  Agent  is  supposed  to
perform.



On the facts of the present  case,  we  find  that  none  of  the  aforesaid
activities are performed  by  the  appellant.   There  is  no  role  of  the
appellant in getting the coal cleared from the collieries/ supplier  of  the
coal.  Movement of the coal is under the contract of sale between  the  coal
company and Ambuja companies.  Even the coal is loaded  on  to  the  railway
wagons by the coal company. The goods are  not  under  any  legal  detention
from which they  need  to  be  freed  by  the  appellant.   Not  only  this,
destination of the goods is known to the coal company and the railway  rakes
are placed by the coal company for the said destinations.   The  destination
is the factories of the principal itself, namely,  Ambuja  companies,  where
the  coal  is  to  be  delivered  by  the   coal   company   as   per   pre-
determined/agreed covenants between them.  Therefore, there is  no  occasion
for Ambuja companies to  instruct  the  appellant  to  dispatch/forward  the
goods to a  particular  destination  which  is  already  fixed  as  per  the
contract between the coal company and the Ambuja companies.   The  appellant
does not even undertake any loading  operation.   The  primary  job  of  the
appellant, as  per  the  contract  between  the  appellant  and  the  Ambuja
companies, is of supervising and liaisoning with the coal  company  as  well
as the Railways to see that the material required  by  Ambuja  companies  is
loaded as per the schedule.  At no stage custody of the  coal  is  taken  by
the appellant or transportation of the coal, as forwarders, is  arranged  by
the appellant.  We are,  thus,  of  the  clear  opinion  that  the  services
rendered by the appellant would not qualify as C&F Agent within the  meaning
of Section 65(25) of the Act.

In view of the  aforesaid  discussion,  the  appeals  are  allowed  and  the
impugned orders passed by the Tribunal are set aside by quashing the  demand
of service tax made from the appellants.
            No costs.

CIVIL APPEAL NO. 9967 OF 2014
                 The Commissioner of Service Tax, Kolkata, is  aggrieved  by
the orders dated August 21, 2013 passed  by  the  High  Court  of  Calcutta,
which has dismissed the appeal of the  Revenue  by  the  impugned  judgment,
refusing to entertain the said appeal which was  preferred  by  the  Revenue
against orders dated April 02, 2013 passed by CESTAT.  In  the  said  appeal
before the CESTAT, it had taken the view, in the  case  of  same  appellant,
that the appellant was not liable to pay any  service  tax  as  it  was  not
covered by the definition of C&F Agent as contained  in  Section  65(25)  of
the Act.  The appeal preferred by the Revenue  was  dismissed  by  the  High
Court on the ground that Civil Appeal No. 5159 of 2013 is  pending  in  this
Court.  Since the said appeal of the  appellant  is  allowed  by  us,  as  a
consequence, this  appeal  warrants  to  be  dismissed  and  it  is  ordered
accordingly.
                 No costs.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)

NEW DELHI;
MAY 05, 2015.
-----------------------
[1]   2002 (145) ELT 222
[2]   2006 (3) STR 321 (Tri.-LB) :: 2006 (110) ECC 634 :: 2006 ECR 634 Tri
Delhi

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