1. This appeal has been filed against Order-in-Appeal No. 20/2006-ST, dated 15-2-2006 passed by the Commissioner of Central Excise (Appeals), Cochin.

2. The appellants are registered as C & F Agents and paid service tax for the period from September 1999 to June 2004. Later on, they came to know about the CESTAT orders dated 27-4-2004, in the case of Mahavir Generics v. CCE 2004 (170) ELT 78/[2007] 6 STT 523 (Delhi - CESTAT) by which it was held that the services of consignment agents cannot be charged to Service Tax as C&F Agent. The appellants were functioning as commission agents for some of the manufacturers of steel pipes. They get the steel pipes and tubes on consignment basis, stock them in their premises and sell the products to their customers. In view of the above decision of the CESTAT they claimed the refund of the Service Tax and penalty paid by them. But the lower authority rejected their refund claim on the ground that the appellants cannot be treated as Commission Agent. Therefore, they approached the Commissioner (Appeals) who passed the impugned order holding that the claim of the refund is not maintainable and the appellants are liable to pay service tax as C&F Agent and, hence, the claim for refund is not admissible. Aggrieved over the impugned order, the appellants have come before this Tribunal for relief.

3. Shri Varadarajan, learned Advocate, appeared on behalf of the appellants and Shri K. Sambi Reddy, learned JDR, represented the revenue.

4. I heard both sides.

5. The Commissioner (Appeals) in the impugned order has stated that the terms and conditions of the agreements filed and written submissions, made by the appellants established that they are rendering service as a Consignment Agent. The definition of C&F Agent includes a ‘consignment agent’. Since the consignment agent is brought under the definition of C&F Agent under section 65(25), the term "C&F Agent" referred to in section 65(105)(j) has to be construed as C&F Agent only. Moreover, he has stated that the CESTAT’s decision in the case of Mahavir Generics (supra) has not reached finality in view of the appeal filed by the revenue in the High Court of Karnataka.

6. On behalf of the appellants it was submitted that they are only selling agents. The agreement clearly defines the role as selling agents and not as C&F or consignment agent. The appellant gets commission based on the sales effected by them. The goods remain the property of the appellant and the principal has no control over the goods. The appellant alone discharges sales tax burden. The appellant is not concerned with receipt of the goods from the manufacturer and also does not take any instructions from the principal. They are independent selling agents. Unlike in the case of C&F Agents, where the goods vest with the principal only, who issues invoices, pay sales tax etc., the appellants are independently handling the goods, issuing invoices etc., and do not take any instructions from the supplier. In terms of agreement, the appellants are merely commission agents. The service tax on commission agents was introduced with effect from 10-9-2004. Since the period of dispute is prior to that date the appellant could not be brought under the head of commission agents. There is no demand on this ground. The appellant’s case is covered by the decision of Mahavir Generics’s case (supra). Further, Larger Bench in the case of Medpro Pharma (P.) Ltd. v. CCE [2006] 4 STT 341 (New Delhi - CESTAT) has not overruled the Tribunal decision in the case of Mahavir Generics (supra), as wrongly noted. The decision of the Larger Bench in the case of Larsen & Toubro Ltd. v. CCE [2006] 4 STT 231 (New Delhi - CESTAT) is only applicable. The Original Authority without appreciating the clear position has held that the case law on Mahavir Generics’ case (supra) is not applicable.

7. When the learned SDR stated that the decision of the Tribunal in the case of Medpro Pharma (P.) Ltd. (supra) is against the a