ORDER
S.S. Kang, Vice-President
1. Heard both sides.
2. The appellant filed this appeal against the Order-in-Appeal passed by the Commissioner (Appeals) whereby a demand of service tax was confirmed and treating the appellant as C & F Agent and penalties were imposed.
3. The issue whether the appellant was providing services of clearing and forwarding agent is now settled by the Larger Bench of this Tribunal vide Final Order No. 5/2006-LB, dated 23-6-2006, 2006 (3) S.T.R. 355 (Tri.-L.B.) in favour of the revenue. In view of the above decision of the Tribunal, the demand of service tax is upheld. The appellant submitted that there was a decision of the Tribunal which was in favour of the appellant in the case of Kulcip Medicines Pvt. Ltd. v. C.C.E., Delhi-III [Final Order dated 29-6-2005 – 2006 (1) S.T.R. 36 (Tribunal)] and now the Larger Bench has resolved this issue and therefore, the imposition of penalty is not sustainable.
4. Revenue’s contention is that prior to 30-6-2001, the appellants were paying service as clearing and forwarding agents, thereafter, the appellant stopped payment of tax and revenue directed them to deposit the tax in spite of the fact that they were providing services as clearing and forwarding agents, therefore, the penalty was rightly imposed. The contention of the revenue is also that in the relevant period in dispute, there was no reason to have a bona fide that appellants are not liable to pay service tax.
5. We find that the issue whether only when the clearing & forwarding agent carries out both clearing and forwarding operations, the levy of service tax will be attracted as held by the Tribunal in the case of Kulcip Medicines Pvt. Ltd. v. C.C.E., Delhi-Ill and in the case of Vaman Pharma Pvt. Ltd. v. C.C., Bangalore 2006 (1) S.T.R. 274 (T), is now resolved by the Larger Bench of this Tribunal. Further, we find that Section 80 of the Finance Act provides that “no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure”.
6. As the Larger Bench of this Tribunal now resolves the issue regarding the scope of clearing and forwarding agent, therefore, we find that it is not a case of imposition of penalty. Penalty imposed on the appellant is set aside and the impugned order is modified to this extent only.
(Dictated and pronounced in open Court)