TaxTMI 
TaxTMI 
2024 (5) TMI 275
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....on of India Ltd. is engaged in providing cargo handling service, storage and warehousing, renting of immovable property services to its customers through various Inland Container Depot (ICD) and Container Freight Station (CFS). Show cause notice dated 13.04.2016 was issued to the appellant on the allegation that the charges accrued to CONCOR in terms of Section 150(2)(d) of the Customs Act, 1962 are for the ground rent/storage rendered towards the un-cleared/un-claimed cargo of the importer, which is liable to service tax amounting to Rs. 5,12,81,495/- not paid during the period 20.10.2011 from October, 2010 to 2014-2015. The Adjudicating Authority by the impugned order relying on the decision of the Tribunal in CCE, C and ST, Raigad Vs. Ba....
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....issions made before us. The issue in the instant case is to decide the ambit of Service Tax in relation to the activity of auctioning the abandoned cargo. The main allegation against the appellants is that the excess amount recovered over and above the storage and warehousing charges was retained by them and the same is liable to Service Tax. The appellants are in the business of providing storage and warehousing services in respect of imported cargo through their Container Freight Station and the crux 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 th....
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....carrier (3) payment of duty (4) payment of the charges in respect of the goods sold, to the person having custody of the goods and (5) payment of any amount due to the Government/Customs and balance, if any, shall be paid to the owner of the goods. This is a statutory and mandatory requirement. The retention of such amount by the custodian is expressly with the obligation to refund to the owner of such goods. Both the above said Sections clearly stipulate only sale of goods and make no provision for any service 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 c....
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....e, from the Service Tax leviable thereon under Section 6 of the Act, subject to the condition that there is documentary proof specifically indicating the value of the said goods and materials. Further, CBEC vide para 36.03 of its Master Circular No. 96/7/2007-ST, dated 23-8-2007 has clarified that 'Service Tax is not leviable on a transaction treated as sale of goods and subjected to levy of Sales Tax/VAT. Whether a given transaction between the service station and the customer is a sale or not, is to be determined taking into account the real nature and material facts of the transaction. Payment of VAT/Sates Tax on a transaction indicates that the said transaction is treated as 'sale of goods '. Board vide instruction F. ....
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.... accrue to the assessee towards storage and warehousing of cargo, which are not taken delivery by the importer. The procedure for auctioning abandoned cargo and the sharing of the proceeds is prescribed by the Ministry of Finance. These instructions also make it clear that the assessee receives amounts towards the service of storage and warehousing of cargo under this head. However, the services are not rendered to any person in the case of abandoned cargo. Therefore, demand under this head is not sustainable." 6. Similarly in the case of India Gateway Terminal (P) Ltd. Vs. Commissioner of Central Excise, Cochin - 2010 (20) STR 338 (Tri.-Bang.), para-9 of the judgement reads as under:- "9. As regards the service tax liability on....