Per Bench: Brief facts are that the appellants are providing Storage and Warehousing Services and are selling the products on behalf of starch and sago manufacturers by issue of tenders. The department entertained the view that the activity would fall under the category of Auctioneering Services. Show-cause notice was issued proposing to ST/40715 40717/2014 demand the service tax along with interest and also to impose penalties. After due process of law, the adjudicating authority held the activity taxable under Auctioneering Services and confirmed the demand, interest and penalties. In appeals, the Commissioner (Appeals) upheld the same. Hence these appeals.
2. At the time of hearing on behalf of the appellants, the learned counsel Ms. Krithika submitted that the issue stands settled in appellants own case vide the decision of the Tribunal as reported in 2018 (3) TMI 192 CESTAT CHENNAI. The Tribunal in the said case discussed the issue as under:- We find merit in these contentions of the appellant. An auction is a live process where all prospective bidders are present at the same time and where the system is transparent enough for each bidder to be aware of the bids put forth by others. Per contra, the tendering process does not allow all prospective bidders to know of the bids made by others. In sale by auction, a bidder can make any number of bids by upping the ante vis-vis., a rival bid. Auction signifies generally an increasing, an enhancement, and hence is applied to a public sale of property usually conducted by biddings, which enhances the price. (Smith s Dict. Of Antiq). The auction process will normally get culminated only when there are no more bids made for the goods auctioned. Whereas, in respect of tenders, there is only one bid that each bidder can make, the tendering process will be completed at the end of the appointed time and date and, only bids received till that cut off point will be considered for evaluation. However, in the traditional method of auctioneering, apart from the auction process per se the auctioneer also provides a gamut of other related services like providing a facility, advertising or illustrating the goods in auction, engage in pre-auction estimates, short term storage services, et al. In our view, this is precisely why the legislature has specifically brought all such activities under a separate Auction of Property Service w.e.f. 01.05.2006. Thus, while both sale by tender and sale by auction may have a common intendment of selling the goods, the modalities and the processes involved in each are very different. Viewed in this light, we are unable to appreciate how the lower appellate authority in para-5.4 of the impugned order, has concluded that the definitions of tender and auction are similar. Further, although the authority has reasoned that the appellants have performed the services of providing facility for easy interaction between the manufacturers and the merchants, provided short term services and have also been involved in the pre-auction price estimation, however, no evidence is forth coming to substantiate such a finding. ST/40715 40717/2014