Commissioner Of Central Excise vs Central Warehousing Corporation

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.ST/158/11

(Arising out of Order-in-Original No.12/CSP(12)/COMMR/ RGD/10-11 dated 10/12/2010 passed by the Commissioner of Central Excise, Raigad)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Commissioner of Central Excise, Raigad Appellant

Vs. Central Warehousing Corporation Respondent Appearance:

Shri. R.K.Das, Dy. Comm. (AR) for appellant None for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 15/07/2015 Date of Decision : 15/07/2015

ORDER NO

Per: M.V. Ravindran

1. This appeal is directed against Order-in-Original No.12/CSP(12)/COMMR/RGD/10-11 dated 10/12/2010 passed by the Commissioner of Central Excise, Raigad.

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 taxability of an amount received by the appellant herein, who is a Container Freight Station (CFS) on the goods auctioned by them. The said goods were abandoned by the importers and the said goods were auctioned as per the provisions of Customs Act, 1962 and after discharging all the duties as per Section 150 of the Customs Act, 1962, the appellant retained an amount, which was to be returned to the importer. It is the case of the Revenue that on this amount, service tax liability arises 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) has relied upon the Boards 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) held in favour of the 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/S.R.(11) COMMR/RGD/09-10, dated 21-1-2010 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 Rs. 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 uncleared cargo, they had undertaken auction of the goods. The demand of Service Tax is on the income received from the sale of uncleared cargo after meeting the various expenses incurred under the category of Cargo Handling Services and Storage & Warehousing Services.

4.?The counsel for the appellant submits that in Boards Circular No. 11/1/2002-TRU, dated 1-8-2002 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. v. Asstt. Commissioner of Central Excise, S.T. Div., Bangalore reported in 2011 (22) S.T.R. 30 (Tri-Bang) and India Gateway Terminal (P) Ltd. v. Commissioner of Central Excise, Cochin reported in 2010 (20) S.T.R. 338 (Tri-Bang), this Tribunal had held that Service Tax is not payable by custodians when they undertake auctioning and sale of uncleared cargo.

5.?The learned AR appearing for the Revenue reiterates the findings given in the Order-in-Original.

6.?We have considered the rival submissions. Taking into account the Boards 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 1-8-2002 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 foregoing, the facts are being very same in the case involved, we are of the view that the impugned order is sustainable and the impugned order is correct and legal and no interference is called for.

6. The impugned order is upheld and the appeal is rejected.

(Dictated in Court)

(Raju) Member (Technical) (M.V. Ravindran) Member (Judicial)

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