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2015 (10) TMI 1580 - CESTAT MUMBAI

2015 (10) TMI 1580 - CESTAT MUMBAI - TMI - Service tax liability for auctioning of abandoned cargo Excess amount earned on auction of cargo shown in income Amount rendered is of storage and warehousing services or not? Held That:- Issue is no more res integra; amount cannot be taxed under storage and warehousing service - Appeal filed by Revenue is devoid of merits - Impugned order is set aside Decision made in the case of Gateway Distri Parks Ltd. Vs. Commissioner of Central Excise, Raiga .....

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d 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 against the cargo auction is pretend by them and shown in the Income side of their Balance-sheet. This can amount to renderi .....

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er the provisions of Chapter V of the Finance Act, 1994 and the Service Tax Rules, 1994. A Show Cause Notice was issued to the appellant on the ground that normally after receipt of the consignments and complying with the necessary customs formalities and payment of various duties, duties and taxes, the importer or their representative take delivery of the imported consignments from the appellant. The appellants are paying appropriate service tax in this regard. However, in some cases, the impor .....

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ew 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 a .....

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submits that in Board's Circular No. 11/1/2002-TRU dated 01/08/2002 it has been clarified that Service Tax is not leviable on the activities of the custodian when he auctions abandoned cargo and VAT/ST is paid in respect of such cargo. Further, in the case of Mysore Sales International Ltd. Vs. Asstt. Commissioner of Central Excise, ST Div., Bangalore reported in 2011 (22) STR 30 (Tri-Bang) = 2011-TIOL-741-CESTAT-BANG and India Gateway Terminal (P) Ltd. Vs. Commissioner of Central Excise, Co .....

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n 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 .....

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wards the warehouse charges. We find that the ratio of the said case law will not be applicable in the case in hand in the issue regarding liability to pay the customs duty on the warehouse charges recovered by the CFS. 5. We also find that on an identical issue in the case of Central Warehousing Corporation - 2015-TIOL-2020-CESTAT-MUM has considered the same issue and in paragraph No. 3, 4 & 5 held as under: - 3. On perusal of the records, we find that the issue involved in this case is reg .....

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under the category of storage and warehousing. 4. We find that the issue is no more res integra as this bench in the case of Maersk India Pvt. Ltd. vs. CCE & C, Raigad reported in 2013 (29) STR 170 (Tri-Mum) = 2012-TIOL-840-CESTAT-MUMhas relied upon the Board's Circular, as well as, the view taken in the case of Mysore Sales International 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 r .....

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ax demands of ₹ 94,02,497/- and also imposed equivalent penalties under Section 78 apart from the penalty under Section 76 of the Finance Act, 1994. The Service Tax demand pertains to the period October, 2003 to September, 2008 from the appellant. The appellant was running a container freight station and was functioning as custodian of the bonded warehouses under the provisions of the Customs Act. In respect of unclear cargo, they had undertaken auction of the goods. The demand of Service .....

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