2015 (10) TMI 1580

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.... 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 rendering of storage and warehousing services. We find that this issue is no more res integra as this Bench in the case of Gateway Distri Parks Ltd. Vs. Commissioner of Central Excise, Raigad  2013-TIOL-2210-CESTAT-MUM, which held that such amount is not taxable under storage and warehousing services. We reproduce the relevant paragraphs: -  "5. The appellant M/s Gateway Distri Packs Ltd are providing services under the Cargo Handling, Storage and War....

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....d'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 Bangalore reported in 2011 (22) STR 30 = 2011-TIOL-741-CESTAT-BANG and the decision of the Tribunal in the case of India Gateway Terminal Pvt Ltd vs. CCE, Cochin reported in 2010 (20) STR 338 =2010-TIOL-1265-CESTAT-BANG set aside the demands which were confirmed on the same ground. The Tribunal in Maersk India Pvt. Ltd. vs CCE supra held as under: "4. The counsel for the appellant 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 V....

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....e 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 Associated Container Terminals Ltd. Vs. Union of India  2008 (226) ELT 169 (Del) for the proposition that any amount which is recovered by auctioning towards 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....

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....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 unclear 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. T....