2009 (7) TMI 120 - HC - Service Tax

User's Fee for Outgoing Passengers Not Subject to Service Tax

COMMISSIONER, CENTRAL EXCISE Versus COCHIN INTERNATIONAL AIRPORT LTD.

The Court held that the respondent is not liable to pay service tax on the 'user's fee' collected from outgoing international passengers, as it was ... Airport Service - user fee - The facts and circumstances of the case and the evidence clearly prove beyond doubt that the users fee collected is only for enhancing the revenue of the Airport and not for any service rendered to outgoing international passengers. Section 67 defining value of taxable services for charging service tax says that the value of service shall be gross amount charged by the service provider for the service provided to the recipient. Since collection of users fee is not for any specific service rendered by them, but is a flat rate of charge to one category of passengers namely, outgoing international passengers, it cannot be said that the amount so collected is by way of service charge. We, therefore, hold that the Tribunal rightly held that no service tax is payable for the users fee collected by the respondent. The appeals are accordingly dismissed. Issues:1. Liability to pay service tax on 'user's fee' collected from outgoing international passengers.2. Interpretation of Section 65(105)(zzm) regarding taxable service provided by airports authority or authorized persons.3. Whether a private airport owned and managed by the respondent falls under the definition of 'airports authority.'4. Determining if the users fee collected is for services rendered or for revenue enhancement.5. Application of Section 67 in defining the value of taxable services for charging service tax.Analysis:1. The judgment revolves around the liability of the respondent to pay service tax on the 'user's fee' collected from outgoing international passengers. The Tribunal held that the respondent is not liable to pay service tax on this fee, which was collected at a flat rate of Rs.500 from every outgoing international passenger.2. The issue of interpretation arises concerning Section 65(105)(zzm), which defines taxable service provided by airports authority or authorized persons. The appellants argued that the respondent, owning and managing a private airport, falls under the definition of 'airports authority' as per the inclusive definition provided in the statute.3. The Court analyzed whether the respondent's private airport can be considered an 'airports authority' based on the definition in Section 65(3d). The Court concluded that if the levy is permissible, the respondent would indeed be liable as the company owning and managing the airport fits the description of an Airports Authority.4. The Court delved into whether the users fee collected was for services rendered or for revenue enhancement. It was noted that the fee was collected to enhance the revenue of the airport and not as consideration for any specific service provided to outgoing international passengers. The Court found that the fee was not for any particular service rendered by the airport.5. Section 67, defining the value of taxable services for charging service tax, was applied in determining whether the users fee collected constituted a service charge. Since the fee was a flat rate charged only to outgoing international passengers and not for any specific service provided, the Court held that it did not qualify as a service charge subject to service tax.In conclusion, the Court dismissed the appeals, affirming the Tribunal's decision that no service tax is payable for the users fee collected by the respondent, as it was deemed to be for revenue enhancement rather than for specific services rendered to outgoing international passengers.