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TMI Blog2013 (2) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... st of auction, then towards customs duties and then to the custodian of the goods. It is clarified that no cargo handling service can be said to have been rendered in such cases, therefore Service tax is not leviable – It is pertinent to note here that when the Board had issued this clarification for ‘Cargo Handling Service’, the service of ‘Storage and Warehouse’ was not brought under Service tax net. Board’s said clarification on ‘cargo handling service’ would equally apply to ‘storage and warehousing service’ by inference. Even though the appellant is the custodian of the goods and not the owner, still transfer to title of the goods takes place during the auction and hence it is to be treated as a sale. The fact of sale is also eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business of Container Freight Station having their CFS situated on the Ponneri High Road about 23 kms away from Chennai Port and 5 kms from New Ennore Port. 2.1 The Goods, which are imported by the containers, are stored in the Bonded warehouse (both open and closed) where de-stuffing of cargo is done and customs examinations are carried out. Wherever the imported goods are not cleared immediately by the importers on reaching the CFS, the goods are de-stuffed and kept in the custody of the warehouse keeper. Sometimes, the goods, which were not taken delivery by the importers within the normal period of warehousing, are treated as abandoned goods. Such goods are auctioned after following the prescribed procedure. Out of the proceedings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority confirmed the proceedings initiated in the SCN but dropped the proposal of penalty under Section 76 of the Finance Act, 1994 vide impugned Order-in-Original. 3. Aggrieved by the impugned order, the appellant had filed the present appeal mainly on the following grounds - (i) that in the instant case, in the absence of claim from the importer(s) over the goods, there was actually no person to whom the taxable storage warehousing service was said to have been provided by the appellants CFS. The question of collection of storage and warehousing charges would arise, only if any person claiming as importer has come forward at a time later to auction to lay claim on the proceeds thereof. In the instant case, during the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance Sheets which are public document, and as such there is no suppression of fact on the part of the appellants; (c) the ST-3 format only require declaration of exempted value of service or non-taxable value of service or value of exempted goods; however the impugned transaction (auction sale) would not fit in any of these three categories of declaration in ST-3 returns; (d) there was no conscious or deliberate or wilful withholding of information on the part of the appellants. Something more than mere inaction or failure was also absent on the part of the appellants, as held in various judgments. 4. Personal hearing was held on 13-6-2011. S/Shri T.A. Rangarajan, Consultant and R.V. Parthasarathy, Dy. Manager of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lful suppression of facts with an intention to evade payment of Service tax. It is pertinent to note here that the auction income has been duly and fully reflected in the appellants books of accounts, which is a public document. In fact the Audit Team had taken the details of auction income only from the balance sheet. The appellant had contended that the original authority has not considered the fact that the auction income has been duly and fully reflected in the appellants books of accounts and that there has been no intention whatsoever on the part of the appellants to hide the auction income from the knowledge of the department. Further it is also not the case of department that the auction income has not been reflected in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CFS as no service is rendered to any person. In the case of auctioned goods, the proceeds of the auction goes first to the cost of auction, then towards customs duties and then to the custodian of the goods. It is clarified that no cargo handling service can be said to have been rendered in such cases, therefore Service tax is not leviable. 6.3 It is pertinent to note here that when the Board had issued this clarification for Cargo Handling Service , the service of Storage and Warehouse was not brought under Service tax net. Board s said clarification on cargo handling service would equally apply to storage and warehousing service by inference. 6.4 Even though the appellant is the custodian of the goods and not the owner, still ..... X X X X Extracts X X X X X X X X Extracts X X X X
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