TMI Blog2015 (11) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... auction that will not empowered the government to recover service tax on the auction proceeds. - Commissioner with proper application of mind given detailed finding not only on the facts but also on the law point of Section 48, 150 of Customs Act, 1962 and also discussed in detail the service tax provision and referred Master Circular dated 23/8/2007 and Board Circular dated 1/8/2002. - there is absolutely no infirmity in the order of the Ld. Commissioner (Appeals), therefore the same has to be sustained. We are therefore upheld the impugned order - Decided against Revenue. - Appeal No. ST/102/12 - Final Order No. A/3578/2015-WZB/STB - Dated:- 13-10-2015 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Petitioner : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent is towards auction of the goods and the said proceed were not received from any service recipient. Since the service recipient does not exist, the transaction could not be liable to service tax. For the purpose of service tax it is foremost requirement that there should be service provider and service recipient. Therefore the sale proceed of auction of abandoned goods is not proceed towards providing any service therefore the same is not chargeable to the service tax. She further submits that Ld. Commissioner (Appeals) has rightly dropped the demand relying on the Board Instruction F.No. B 11/1/2002-TRU dated 1/8/2002 wherein it was clarified that no cargo handling service said to have been rendered in case of abandoned cargo, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ux 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 of the business activity of running a CFS and selling of such uncleared goods is not their separate business activity. Therefore, there is no dispute that the sole association of the appellants with such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 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 bidder receives the ownership of goods. The auction of the said goods is carried out purely on a commercial basis and the consideration received is without the element of cost of storage and warehousing cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 he warehousing of abandoned cargo also and the said clarification can be applied to the instant case since no warehousing service can be said to have been rendered. I also place reliance on Tribunal's decision in the case of M/s. India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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