AMITDEEP MOTORS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) LD . Consultant Shri S.P. Ojha submits that the transactions made by Maruti Udyog Ltd. as seller of the vehicle to a Central Government Department in terms of page 114 to page 122 of the appeal folders exhibiting respective invoices have been held by the department to be a transaction under the category of Clearing & Forwarding Agency. He submits that orders can be procured by Maruti dealers and that can be directly passed on to Maruti for execution. Maruti Udyog pays consideration for such purposes to the dealer. This appeal comes in that category in respect of the invoices appearing in pages 114 to 122 of the appeal folder. He submits that the appellant is totally away from the inter -state sales made by Maruti Udyog to the Commandant, Central Ordinance Depot. He brings to our knowledge that mere procurement of order for getting commission shall not bring the appellant to the course of law following the Larger Bench decision in the case of Larsen & Toubro Ltd. v. CCE, [2006] 4 STT 231 (New Delhi - CESTAT). This decision of the Tribunal was accepted by revenue for which revenue lost its appeal before the Hon'ble High Court of Punjab & Haryana in the case of CCE v. United Plastomers, [2008] 14 STT 67. Therefore, he submits that the authorities below having misconstrued the transactions, brought the appellant to the tax which is not legally permissible. Therefore, he prays that the appeal may be allowed.

(2.) LD . DR argues that the information collected from Maruti Udyog appearing at page 46 of the appeal folder shows that the deal was as that of consignor and consignee by pre -delivery inspection done by the appellant. Therefore, the whole transaction was in the nature of clearing and forwarding agency.

(3.) WE have gone through the clearing and forwarding agency definition appearing under Section 65(25) of the Finance Act, 1994. The nature of transaction between Maruti Udyog and the buyer were sales of goods upon the order procured by the Maruti dealer which is the appellant. The invoices shown to us as appearing at pages 114 to 122 of the appeal folder were subject -matter of taxation under Central Sales Tax Act, 1956. The invoices clearly reflect that the buyer was the Commandant, Central Ordinance Depot and movement goods were from Gurgaon by Maruti to the buyer and that was at the risk of the buyer on delivery at Gurgaon itself. There is nothing available on the record to appreciate that the appellant acted as a consignee of the goods by the consignor Maruti Udyog Ltd. We are, therefore, compelled to hold that a sale transaction cannot be converted into a service provided under the category of clearing and forwarding service. All the elements of sale of goods being present in these transactions, the appellant should certainly be stated to be no service provider of taxable service in this appeal. Also the appellant's case gets supports from the Larger Bench decision cited by the Ld. Consultant as aforesaid.