TaxTMI 
TaxTMI 
2016 (8) TMI 1054
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....llect a 'development fee' @ Rs. 100/- for every departing domestic passenger and Rs. 600/- for every departing international passenger at Chatrapati Shivaji International Airport with effect from 1st April 2009 for a period of 48 months. 2. The Commissioner of Service Tax, in show cause notice dated 18th April 2011, demanded a tax of Rs. 54,68,47,002/- on the 'development fee' of Rs. 5309194199/- collected between April 2009 and January 2011. The notice was adjudicated by Commissioner of Service Tax - I, Mumbai vide order-in-original no: 65/STC-I/SKS/11-12 dated 29th February 2012. On appeal filed by M/s Mumbai International Airport Pvt Ltd, this Tribunal vide order no. A/1718/13/CSTB/C-I dated 4th July 2013 in appeal no. ST/411/12-MUM set aside the order and remanded the matter back to the original authority requiring fresh adjudication after taking into consideration the decisions of the Hon'ble Supreme Court in the case of Consumer Online Foundation v. Union of India [(2011) 5 SCC 360, Commissioner of Central Excise v. Cochin International Airport Ltd [2010 (17) STR J&( (SC)], Acer India Ltd and Orissa Cement Ltd v. State of Orissa & Ors AIR 1991....
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....ssessing Authorities will have to keep in mind the following principles: If the SIM Card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. .. ... ....." to support the contention in the impugned order that the appellant as well as the passengers did not entertain the idea that they were collecting or paying a tax when transacting in the development fee and thereby seeking to counter the plea on behalf of the appellant that this levy should have the status of a tax. 6. It would appear from a perusal of the impugned order that the adjudicating authority has overlooked the fundamental requirement of a demand for tax: articulation of the authority to levy that tax and the manner in which the impugned transaction conforms to the charging provision of the taxing statute. While the impugned ordered is long on criticism of wisdom of ....
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....nd consideration for a taxable service; it has proceeded on the assumption that the appellant, being a airport operator and subject to service tax, is required to pay tax on the entirety of its collection. These flaws render the notice and demand to be not tenable and the demand would fail on this count itself. 8. The tax authorized to be collected as per section 65(105)(zzm) of Finance Act, 1994 after 1st July 2010 is on service: "to any person, by airport authority or any other person, in any airport or a civil enclave" for the period prior to that was: "to any person, by airports authority or any person authorised by it, in an airport or a civil enclave" 9. Undoubtedly, for exigibility to tax, the service must be rendered to a person by the specifically described service provider within an airport. The scope of the activities of the appellant vis-`-vis passengers who bear the burden of 'development fee' needs examination. Passengers in an airport are individuals who intend to travel by an airline that has the said airport as a scheduled port of call. The contractual nature of this relationship is enshrined in the ticket which provides access to t....
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....a for deposit and drawal with that of the accounts of the Authority. 12. Section 22 of the Act enables the airport authority to charge users of its facilities. We have noted supra that this provision was never invoked for passengers and payments were restricted to and only upon exercise of option to procure food and non-food articles from licencees situated in the airport premises. On the other hand, the levy under section 22A of the Act was did not afford the privilege of exercise of an option by the passenger and perforce enforced, without consent of the passenger, through the airlines on the basis of passenger data furnished by them on a fortnightly basis. The amounts so collected were placed in an escrow account owing to the restricted scope of expenditure being specifically enumerated in section 22A of the Act. There is, therefore, a substantive difference between a charge under section 22 and levy under section 22A. It could well be said that charge under section 22 if visited upon a passenger would be a consideration for a service. Such an interpretation cannot be accorded to a levy under section 22A which is independent of section 22 and dis....