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2016 (12) TMI 98 - AT - Service TaxLevy of tax - amount recovered from sale proceed of auction of unclaimed cargo - Cargo Handling Storage and Warehousing - interpretation of statute - Held that: - the Revenue seek to charge service tax on the sale proceed from auction of abandoned goods though the person who stored the goods does not exist and there is no dealing with the said person. The appellant is selling the goods in open auction and receiving the sale proceed out of such auction, in this process no service recipient is existing. It is the foremost principle for levying service tax is that for provision of any service, provider and service recipient should exist then only the transaction of service can be completed by providing service of service provider and receiving the service by service recipient - In the present case, the service recipient does not exist. The activity is of sale of abandoned goods and the proceed of sale of goods does not attract any service tax. In CBEC's Master Circular No.96/7/2007-ST dated 2-08-2007. in Para 036.03. it has been clarified 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 he determined taking into account the real nature and material facts of the transaction. Payment of VAT/sales tax on transaction indicates that the said transaction is treated as sale of goods. Thus in an unequivocal terms it is made clear in the instant Circular that value of goods on which VAT is paid is not chargeable to Service Tax and therefore for this reason. I hold that the amount collected by the Noticee towards sales/auction proceeds does not fall under the purview of Service tax. Levy of tax not justified - appeal dismissed - decided against appellant-Revenue.
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