Cestat, Mumbai Bench
Maersk India (P.) Ltd.
Commissioner of Central Excise & Customs
ORDER NOS. S/601/2012/WZB/CSTB/C-I
Application No. ST/Stay-967 OF 2010
Appeal No. ST/231/2010
MARCH 16, 2012
Ashok Jindal, Judicial Member
These appeal and stay application are directed against the Order-in-Original No: 11/SR (11)COMMR/RGD/09-10 dated 21/01/2010 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 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. 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 VAT/ST is paid in respect of such cargo. Further, in the case of Mysore Sales International Ltd. v. Asstt. CCE  31 STT 161 and India Gateway Terminal (P.) Ltd. v. CCE  20 STT 338 Tribunal had held that Service Tax is not payable by custodians when they undertake auctioning and sale of uncleared cargo.
5. The learned A.R. appearing for the revenue reiterates the findings given in the Order-in-Original.
6. We have considered the rival submissions. Taking into account the Board’s 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 01/08/2002 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).