TaxTMI 
TaxTMI 
2024 (5) TMI 994
X X X X Extracts X X X X
X X X X Extracts X X X X
....importer. In certain cases where nobody turns up to claim the imported goods, appellant is required to resort to the provisions of Section 48 of Customs Act, 1962 which provides for sale of such unclaimed imported goods after 30 days of unloading of such goods into Container Freight Station and after seeking permission from the Customs authorities. In respect of the goods which are cleared and claimed by the importers, appellant collects warehousing charges and discharges services tax liability on the service of warehousing and also on the service of cargo handling. In cases where the unclaimed goods are sold, as provided under Section 48 of Customs Act, 1962, the proceeds of the said sale are dealt with as provided under Section 150 of Customs Act, 1962. Section 150 of Customs Act, 1962 has provided that out of the sale proceeds, firstly payment of expenses for the sale are to be paid; then payment of the freight and other charges are to be paid; then payment of duty on the goods sold is to be paid; then payment of the charges in respect of the goods sold due to the person having the custody of the goods is to be paid; then payment of any amount due from the owner of the goods to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... through single impugned order-in-original wherein the original authority did not appreciate the argument put forth, and confirmed the demand of service tax of Rs.34,59,336/- for the year 2012-13 and Rs.81,19,564/- for the year 2013-14 and imposed penalties. Aggrieved by the said order, appellant is before this Tribunal. 2. Heard the learned counsel for the appellant. Learned counsel for the appellant has reiterated their submissions that were made before the original authority through the replies to the show cause notices. Learned counsel for the appellant has also brought to the notice of this Bench the contents of para 13.14 of the impugned order-in-original wherein the original authority has taken note of the issue being decided by this Tribunal in favour of the appellant in their own case for the earlier period. Learned counsel for the appellant has submitted that the learned original authority has taken note of earlier decisions of this Tribunal in their own case reported as [2015] 62 taxmann.com 313 (Mumbai-CESTAT). Further, learned counsel for the appellant has submitted that the original authority has taken note that the appellant has placed reliance on Tribunal's decisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mysore Sales International Ltd. v. Asstt. CCE&ST [2011] 31 STT 161, India Gate Way Terminal (P.) Ltd. v. CCE [2011] 33 STT 72 (Mag.)/15 taxmann.com 55 (Bang - CESTAT) had held that Board's Circular No. 11/1/2002-TRU dated 1/8/2002 will be applicable and no service tax liability arises on such amount which remains balance with the assessee. This ratio is followed by this Bench in the case of Maersk India (P) Ltd. v. CCE&C [2012] 37 STT 685 (Mum. - CESTAT. We find that the facts of the case in hand are similar to the facts in the cases where this Tribunal has taken a view in favour of the appellant. 5. Learned Departmental Representative would submit that Honourable High Court of Delhi in the case of Associated Container Terminals Lid. v. Union of India 2008 (226) ELT 169 (Delhi) has held that amount which is collected by the warehouse keeper would be first adjusted towards warehousing charges, as per this ratio, the amount that is in balance with the appellant is nothing but amount received for warehousing charges. 6. We do not agree with the proposition put forth by the DR as dispute in this case is not whether the balance amount retained would be towards warehousing char....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ued with reference to the first show cause notice dated 27.09.2010. Therefore, it is not understood as to which order of the Commissioner was assailed in the appeal of 2010 filed before this Tribunal. Be that as it may, there were more than one appeals filed in respect of said order by the Assessee Appellant while Respondent department also had filed an appeal, which was seemed to have been filed against nonimposition of the penalties where as going by the order of the Commissioner annexed to the appeal memo at page no. 55 to page no. 74, it can be that he had adjudicated SCNs for the period 2009-2010 and 2010-2011 vide Order- In-Original dated 29.01.2016 wherein it was noted by him that service tax in respect of " Storage and warehousing services and cargo handling services" were already discharged by the Appellant and the balance of sale proceeds lying in the account of the Appellant, that could not be returned to the importer for his non-appearance after abandonment of goods, was not liable to service tax and he states to have followed the decision of Tribunal passed in 2015 (for the period before 2009), to state that no duty is payable on surplus sale proceeds of auction sale. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plus money received by it from auction of goods abandoned by the importer and the same demand was confirmed against the Appellant by the Commissioner as well as by this Tribunal. It would come to substantiate further that Appellant had paid service tax previously in respect of proceeds of those abandoned cargo and availed CENVAT credit that was held to be inadmissible by CESTAT. (iv) The said order for the period 2009-2011 having remained unchallenged, it was supposed to operate as Res-Judicata as well as binding precedent on the adjudicating authority and also this order of CESTAT passed in 2015, referred above as in both the orders duty on balance amount of auction of unclaimed imported goods was held to be not imposable under the Finance Act and learned Commissioner in his order that is assailed here also had given the same finding that surplus proceeds of auction sale of imported goods cannot be charged to service tax. (v) There are references to precedent decision of this Tribunal in para 4 of the said order of this Tribunal passed in 2015. Going by the ratio of these decisions, it can be said that those were passed either on the basis of the fact that there was 'no recipi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... months after payment of Central Government dues. (vi) In the said order passed by this Tribunal on 08.07.2015 in ST/176-191/2010 in Appellant's own case, there is a reference to circular no. 11/1 of 2002-TRU dated 01/08/2002 which was held to be applicable in Appellant's case to justify no service tax liability on it but a close reading of the said circular would go to justify that demand against the Appellant was against "storage and warehousing services" along with balance amount retained by the Appellant that was payable to the importer and confirmation of demand was made only in respect of "storage and warehousing services", while the said circular has dealt with cargo handling services and its para 12 clarifies that 'no cargo handling' services can be said to have been rendered in case of abandoned cargo which were auctioned by custodian of goods and the grounds cited therein was that there was no person available to whom service was rendered. This aspect of recipient of service was already dealt in the previous para of this order but what is important to note here is that the said circular in respect of cargo handling service is to be read conjointly with para 5 (annexure ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s even when he bifurcated the "storage and warehousing services" and the amount payable to the importer in the same Order-In-Original for the period 2013-14. It could be appropriate only when "storage and warehousing" charges would have far exceeded the entire sale proceeds of the abandoned cargo put under auction during the relevant period but due to non-availability of the data at this end, no definite finding is possible. 7. As revealed from the appeal memo, Appellant also had relied on the decision of this Tribunal passed in the case of M/s. Trans India Logistics Park limited and pleaded the same in its written note of the argument as a decision passed in its favour without any reference as to if the present Appellant and the said Trans India Logistics Park Limited are one and same or sister concern of each other but the said order was passed in respect of availment of CENVAT credit on certain services which were exclusively used for auction of abandoned goods that was held to be inadmissible by the Adjudicating Authority by holding such auction sale as trading activity. When Appellant challenged the same on the ground that trading as exempted services was introduced in the de....