TaxTMI 
TaxTMI 
2016 (7) TMI 1077
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.... vii. Passenger service charge (QX) viii. Passenger Solidarity Charge (IZ). ix. Custom Duty Fee (YC) x. International Transportation Tax (US). xi. Aphis User Fee xii. Federal Inspection Fee (XY). xiii. Security Fee xiv. Facility charge (XF) xv. Canada Air Security Charge (CA) xvi. Japan Consumption Tax (JP). xvii. Domestic Passenger Facility Charge (HJ). xviii. Airport Imination Fee (SQ). xix. Singapore Departure Tax (SG) and xx. Other charges. 2. The appellant contended as under: a) The total in column No. 7 ( service tax to be paid) in chart annexed as Annexure A to the show cause notice is wrong inasmuch as against the total shown as Rs. 6,20,48,923/- the correct total comes to only Rs. 6,16,52,181/as a result of which differential service tax in Col.9 of the said Annexure would be correspondingly reduced. b) There was no liability for paying service tax on the appellant as the show cause notice was issued to M/s Japan Airlines and not to the appellant, namely M/s Japan Airlines Internat....
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....l Airport Com any WY Passenger Service Charge - Intl. Australia Paid to Airport Authority LK Embarkation Fee Sri Lanka Civil Aviation Authority of Sri Lanka AE Passenger Service Charge (Int'l.) United Arab Emirates CEO Dubai Airports JP Consumptio Tax Japan Paid to Japan International Air port RA Passenger Service Charge - Intl Germany Munish Airport Authority MN Passenger Service Charge Mongolia Airports Authority TW Airport Service Charge -Intl Chinese Taipei Taiwan Sung Shan Airport DQ Security Charge Finland Airport Authority QH Embarkation Fee Egypt Civil Aviation Authority EQ Service Charge Egypt Cairo Airport Authority FI Passenger Fee (International) Finland Civil Aviation Administration RN Passenger Service Charge Netherlan....
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.... YE Tourism Tax Yemen, Republic of Republic of Yemen Government ZY Passenger Service Charge Austria Austria Airport Authority AT Passenger Security Charge Austria Austria Airport Authority (f) It is evident from the letter of the Additional Commissioner of Anti-Evasion, Commissionerate of Service Tax, Delhi No.DL/ST/AE/Gr.V/Inq/68/07 dated 29/30.08.2007 that the Commissionerate had called a meeting of all the Airlines to disuse the issue relating to levy of service tax on Airlines and there was no willful, misstatement/suppression of facts on the appellant's part as it had submitted periodical returns and had clearly informed the Revenue Department that it was paying service tax only on the basic air fare. g) As the show cause notice has been issued in terms of the proviso to Section 73, in the absence of willful misstatement/suppression of facts, the entire demand (including that pertaining to the normal period) has to be dropped as the said show cause notice cannot be converted into a show cause notice for demand of service tax for normal period as has been held by the ....
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....submit the figures as mentioned in para 4.2 of the adjudication order but the appellant did not timely do so. Even when some figures were eventually supplied, it did not supply figures relating to tickets issued prior to 1.5.2006 for the journey performed after 1.5.2006 and the amount collected against cancellation charges during the period 1.5.06 to 31.3.08 although it promised that they would be supplied in due course. 4. We have considered the contentions of both sides. It is true that Annexure A to the show cause notice in column No.5 does state "value on which tax is to be paid" and contains figures equal to gross fare (Col.2) minus refund (Col. 3) but in column (7) the service tax to be paid has been computed on the gross figures shown in column (2). However it is pertinent to mention that Annexure A is essentially a compilation of various figures and the basis for charging service tax has been given in the show cause notice in which it is clearly stated as to why calculation for differential service tax demanded has been made on the basis of gross fare receipts (given in Col.2 of the said annexure). As stated in the impugned order, the appellant did not give any evidence ....
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....ra) by observing inter alia that the judgement in the case of British Airways PLC Vs. CST, New Delhi (supra) had taken support of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006, which has been declared ultra vires by Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. vs. Union of India [2012-TIOL-966-HC-DEL-ST]. 6. However, fuel surcharge (YQ), insurance surcharge (YQ) and insurance & fuel surcharge (YR) are not the amounts collected to be reimbursed to any agencies. Section 67 of Finance Act, 1994 provides that assessable value for charging service tax is the gross amount charged by the service provider for such service. Therefore, these charges clearly constitute part of the gross receipt for rendition of service$. Incidentally, it may be pertinent to mention that the Airlines collectively took up this issue with CBEC which vide letter No.341/52/2006-TRU dated 18.9.2007 addressed to Chairman Board of Airlines Representative in India categorically clarified that fuel surcharge, insurance surcharge and insurance & fuel surcharge ( YQ) & (YR)are includible in the assessable value. The said CBEC letter is reproduced below for ready ....
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.... CBEC and it had also clearly informed the Revenue Department that it paid service tax on the basic fare only. Normally, in these circumstances, the allegation of suppression of facts/misstatement may not have been sustainable. However, in the present case, we find that when the Custom Department came to know that service tax was being paid only on basic fare, it wrote to the appellant repeatedly asking for the details regarding the gross amount collected. Paras 2, 3, 4, 4.1. & 4.2 of the impugned order are reproduced below as they clearly bring out the factual position as to how the appellant dilly dallied in providing the details in spite of being repeated asked and even eventually did not supply full information: "2. Intelligence was gathered that the assessee was not paying service tax on the gross value of the services provided under the category of service 'Transport of passengers embarking in India for international journey by Air Service' as per the provisions of Sec. 67 of the Finance Act, 1994 (the Act, in short) read with the Service Tax (Determination of Value) Rules, 2006. Accordingly, inquiries were made from the assessee in this regard vide let....
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....versant officer to sort out the discrepancies, In reply to this, the assessee vide their letter dated 3.7.08, submitted an abstract of the tickets sold during 1.5.06 to 30.9.07 and copies of challans for the month of June 2006 and January 2007. It was further submitted that details for tickets issued priort to 1.5.06 but used on or after and amount collected against cancellation charges during 1.5.06 to 31.3.08 would be submitted in due course of time. However, no such details had been supplied by the assessee". From the foregoing, it is evident that appellant deliberately dilly dallied in providing the required information in spite of being asked repeatedly as a consequence of which the Revenue could eventually issue the show cause notice based upon whatever information was belatedly provided by the appellant although it did not provide the entire information which was sought. The provision relating to willful misstatement/suppression of fact have been explained by the Hon'ble Supreme Court in several judgments. For example, in the case of Uniworth Textiles Ltd. Vs. CCE, Raipur [2013 (288) ELT 161 (SC)], it was held that mere non-payment of duties is not equivalent....