TMI Blog2015 (10) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. ST/65/12 - - - Dated:- 1-10-2015 - Shri M. V. Ravindran, Member ( Judicial ) And Shri C. J. Mathew, Member ( Technical ) For the Petitioner : Shri S.R. Nair, EO (AR) For the Respondent : Shri S.P. Sheth, Advocate ORDER Per: M.V. Ravindran This appeal is directed against Order-in-Appeal No. US/355-356/RGD/2011 dated 20.10.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-II. 2. Heard both sides and perused the records. 3. On perusal of the records, we find that the issue involved in this case is regarding the Service Tax liability in relation to the auctioning of abandoned cargo. The main allegation against the respondent is that the excess amount recovered over and above the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins the surplus amount realized from the auction. Such amounts are shown in their Balance-sheet as income. The Revenue is of the view that the appellants are liable to pay service tax on such amounts as income accruing to the appellant on account of various services provided by the appellant. The demands were made under the category of Storage and Warehousing Service. 6. We find that this issue is now settled by the Tribunal in the case of Maersk India Pvt. Ltd. vs. CCE C, Raigad reported in - 2012-TIOL-840-CESTAT-MUM whereby the Tribunal after relying upon the Board's Circular No. 11/1/2002-TRU dated 01.08.2002 and the decision in the case of Mysore Sales International Ltd vs. Assistant Commissioner of Central Excise, ST Bangalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 01/08/2002 has clarified that Service Tax is not leviable on the activities of the custodian where he auctions abandoned cargo and ST/VAT is paid in respect of that cargo and the same view has been taken by this Tribunal in the case of Mysore Sales International Ltd. (supra) and India Gateway Terminal (P) Ltd. (supra), following the ratio of the cited decisions, we set aside the impugned order and allow the appeal with consequential relief (if any). 7. In view of the above decisions, the impugned order whereby the demands are confirmed on the same ground are set aside and the appeal filed by M/s Gateway Distri Park Ltd are allowed. 4. Learned AR relies upon the judgment of the Hon'ble High Court of Delhi in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional ltd., vs. Asst. CCE ST, Bangalore reported in 2011 (22) STR 30 (T) = 2011-TIOL-741-CESTAT-BANG held in favour of appellant/assessee therein. We respectfully reproduce the entire judgement of Maersk India Pvt. Ltd: These appeal and stay application are directed against the Order-in-Original No: 11/SR(11)COMMR/RGD/09-10 dated 21/01/2010 passed by the Commissioner of Service Tax, Raigad. 2. After hearing both sides, we find that the appeal itself can be disposed of at this stage. Therefore, after granting waiver of pre-deposit, we take the appeal itself for disposal. 3. Vide the impugned order, the Commissioner has confirmed Service Tax demands of ₹ 94,02,497/- and also imposed equivalent penalties under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. Taking into account the Board's Circular and decisions of the Tribunal (cited supra), after waiving the requirement of pre-deposit, we have taken the appeal itself for final disposal. 7. As discussed above, that the Board Circular No.11/1/2002-TRU dated 01/08/2002 has clarified that Service Tax is not leviable on the activities of the custodian where he auctions abandoned cargo and ST/VAT is paid in respect of that cargo and the same view has been taken by this Tribunal in the case of Mysore Sales International Ltd. (supra) and India Gateway Terminal (P) Ltd. (supra), following the ratio of the cited decisions, we set aside the impugned order and allow the appeal with consequential relief (if any). 5. In view of the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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