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TMI Blog2019 (1) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that Merely for the reason that Section 150 provides for distribution of the amount of proceed of auction that will not empowered the government to recover service tax on the auction proceeds - demand do not sustain - appeal dismissed - decided against Revenue. - Appeal No.: ST/00570/2011 - Final Order No. 43162/2018 - Dated:- 21-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Ms. T. Usha Devi, DC (AR) for the Appellant Shri. N. K. Bharath Kumar, Consultant for the Respondent ORDER Per P. Dinesha : The Revenue has filed this appeal. 2.1 The assessee-respondent is registered with the Department under Cargo Handling Service, Storage and Warehousing Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices were being provided for which service there is a liability on the importer, the tax on which has to be paid to the exchequer. Vide Order-in-Original dated 27.11.2009, the adjudicating authority confirmed the demand holding that the Auction Income was chargeable to service tax under Storage and Warehousing Service. 2.4 The first appellate authority, on appeal by the assessee-respondent, however has deleted the addition inter alia holding as under : 6.1 The appellant had submitted that no service tax is payable in the instant case since the element of service provider and service recipient are absent. They also submitted that in the case of Service tax recoverable on storage and warehouse service, the tax will be due only if su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions, perused the documents placed on record and have also gone through the Orders referred to during the course of arguments. 6. The undisputed position is that nowhere in the Show Cause Notice has the Revenue alleged unjust enrichment. Admittedly, Auction Income is nowhere defined under the statute and at the most what could have been sought to be taxed, instead of the so- called Auction Income, is the service element relating to the services of Storage and Warehousing, if any. We note that the Hon ble Mumbai Bench of the CESTAT has decided identical issue in a number of cases : Commissioner of C.Ex., Cus. S.T., Raigad Vs. Balmer Lawrie Co. Ltd. 2016 (41) S.T.R. 908 (Tri. Mum.); Commr. of C.Ex., Cus. S.T., R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them and the same is liable to Service Tax. The appellants are in the business of providing storage and warehousing services in respect of imported cargo through their Container Freight Station and the crux of the demand against the appellants is on the ground that the sole association of the appellants with the abandoned cargo auctioned by them is through the various services provided by them and thus any income earned by the appellants from the auction of such abandoned cargo, after paying the customs duty and other expenses, is gross amount accruing to the appellants in lieu of the storage and warehousing services provided by the appellants in respect of such imported goods. It is indeed a fact that auctioning of uncleared cargo is part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of such amount by the custodian is expressly with the obligation to refund to the owner of such goods. Both the above said Sections clearly stipulate only sale of goods and make no provision for any service rendered. Section 65(105), Section 66, Section 64(3) and Section 67 of the Finance Act, 1994 make it clear that in order to attract Service Tax, there must be a taxable service provided, a service provider, a service receiver and a consideration received for the provision of the taxable service. In this case, on completion of auction and consequent to sale of such goods, the title of the goods passes to the successful bidder, who has not received any service on account of storage and warehousing of such goods rather the successful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Service Tax is not leviable on a transaction treated as sale of goods and subjected to levy of Sales Tax/VAT. Whether a given transaction between the service station and the customer is a sale or not, is to be determined taking into account the real nature and material facts of the transaction. Payment of VAT/Sales Tax on a transaction indicates that the said transaction is treated as sale of goods . Board vide Instruction F. No. B11/1/2002-TRU, dated 1-8-2002 has clarified that no cargo handling service can be said to have been rendered in case of abandoned cargo, therefore, service tax is not leviable. Since cargo handling is precursor to the warehousing, the Circular can be logically applied to the warehousing of abandoned c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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