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2013 (2) TMI 434 - Commissioner - Service TaxStorage and Warehousing service – Whether the appellant is liable to pay Service tax under ‘storage and warehousing service’ – Appellant have earned “Auction Income” realized from the auction proceeds of the abandoned cargo by the importers. auction income is retained by the appellant in lieu of the storage and warehousing charges due from the importer Held that:- A clarification has been sought as to whether Service tax is payable on abandoned cargo which are auctioned by the 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 – 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 evident from the sales tax having been paid by the successful bidder. Thus, when the transaction is one of sale and not a service, the question of payment of Service tax will never arise – Therefor appellant need not to pay any Service tax – In favour of assessee. Extended period of limitation - Whether the extended period can be invoked - Held that:- ‘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 their regular books of accounts so as to invoke extended time limit. This has also been decided in CCE v. H.M.M. Ltd.[ 1995 (1) TMI 70 - SUPREME COURT OF INDIA]). Therefore extended period of limitation cannot be invoked in the instant case – In favour of assessee.
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