Full Judgment
2. The demand is confirmed treating the applicant as a consignment agent. Whereas, the case of the applicant is that they have only Commissioner agent. The contention is that the applicants is receiving tea from the manufacturer. The tea is sold by the applicants to various customers and after deducting the commission the sale price is reverted back to the supplier. The revenue relied upon the decision of the Tribunal in the case of CCE, Jaipur v. Chopra Brothers to submit that in similar situation Tribunal held that assessee is functioning as C&F agent. On the other hand applicants relied upon Board Circular No. 5918/03 dated 08/08/2003 where the position in respect of consignment agent and in respect of commission agent is clarified. The Board Circular clarified that a consignment agent job is to receive the goods from the principal and despatch them from the direction of principal for sale on behalf of another person.
The contention of applicant is that in the present case the goods received by them are for sale and sold by them and the goods are not despatch by them on direction by the supplier. Hence the applicant is a commission agent. We find, the decision of Tribunal relied has not taken into consideration the clarification dated 20/06/03. As the applicants are selling the goods by identifying the purchasers and not clearing the goods on the direction of the supplier of the goods.
Therefore, prima facie, the applicant has a strong case. The amount already deposited is sufficient for hearing of the appeal. The pre-deposit of remaining amount of service tax and penalty is waived.
Stay petition is allowed.