TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 979
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....Addendum to Show Cause Notice dated 19.09.2011 issued vide F. No DL-II/ST/R-XI/SCN/DIAL/29/2011/1501 for Rs. 3,55,65,653/- (c) Show Cause Notice dated 18.04.2013 issued vide F. No DL-II/ST/R-XI/SCN/DIAL/29/2011/292 for Rs. 44,37,26,187/- (d) Show Cause Notice dated 21.10.2014 issued vide F. No DL-II/ST/R-XI/SCN/DIAL/29/2011/1262 for Rs. 85,80,22,610/- Total Rs. 262,06,24,787/- 3. The appellant is a company incorporated under the provisions of Companies Act, 1956 and is registered with Service Tax Department vide Registration No. AACCD3570FST001. They entered in Agreement with Airports Authority of India, for 'Operation, Management and Development Agreement' (OMDA) dated 4th April, 2006, to undertake some of its functions namely, operating, maintaining, developing, designing, constructing, upgrading, modernizing, financing and managing IGI Airport and to perform services and activities constituting Aeronautical and Non-Aeronautical services (excluding the Reserved Activities) at the IGI Airport. 4. As per the OMDA the appellant has been granted the exclusive right in respect of IGI Airport inter alia to develop, finance, design, construct, modernize, operate, maintain, use and....
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....97/- already deposited by the appellant under protest, was appropriated, interest under Section 75 of Finance Act, 1994 demanded and penalties under Section 78 and 76 of the Act ibid, were imposed. Hence the present appeal. 8. Shri Somesh Arora, Advocate appeared for the appellant and Sh Amresh Jain, DR, represented Revenue. 9. Learned Counsel for appellant relies upon the definition of 'airport' in Section 65(3c) of Finance Act, 1994 and the taxable service in Section 65(105)(zzm) to contend that the taxable activity cannot be said to have occurred as the collections are intended for future development(s) whereas 'airport' as referred to in Section 65(105)(zzm) is the existing airport. Drawing attention to the decision of the Hon'ble Supreme Court in Consumer Online Foundation & Others v. Union of India [(2011) 5 SCC 360] it was claimed that such statutory levies being in the nature of cess or tax, was not liable to taxation. The following cases were also relied upon i. Mumbai International Airport P. Ltd. Vs Commr. Of ST-I, Mumbai-2017 (51) STR 280 (Tri-Mumbai) ii. Cochin International Airport Ltd. v. Commissioner of Central Excise & Customs, Kochi-2007 (7) STR 468 (Tri-Bang....
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....under the control of the Ministry of Civil Aviation. Air carriage was de-nationalised first and, in keeping with the evolving trend of autonomy for infrastructure sector, management of airports were consolidated under a single authority with the enactment of the Airports Authority of India Act, 1994. Later on, airport operators were brought into the legislative framework by incorporation of leasing mechanism. The appellant is one such. 11.Owing to this transition from being a departmental undertaking of the Government to an authority with consequent financial independence but at the same time requiring, in the interest of safety and security, some level of control, de-regulation was of limited and confined to the financial aspect of airport management. Having created a statutory authority, it was also incumbent upon the statute to contain the scope of the functions of the authority. Hence the specific enumeration of role and responsibility in Section 12 of the Airports Authority of India Act, 1994. Despite the grant of financial autonomy the need for dependence on the State exchequer could not be eliminated and hence appropriate types of levies as well as restrictions on their ut....
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....purpose. We cannot agree with this contention because the Hon'ble Supreme Court in the very same decision has directed that the amount so collected should necessarily be used only for the purpose intended in Section 22A of the Act. In that context, the attempt by Revenue to cite intention of the two parties by reference to Bharat Sanchar Nigam Ltd. supra as germane to delinking it from tax is rendered irrelevant. 15.The decision of the Tribunal in Cochin International Airport Ltd. v. Commissioner of Central Excise & Customs, Kochi-2007 (7) STR 468 (Tri-Bang) affirmed by the Hon'ble High Court of Kerala- 2009 (16) STR 401 (Ker) and by the Hon'ble Supreme Court-2010 (17) STR J79 (SC) has again clarified that the 'development fee' is not linked to provision of service and hence not liable to service tax. The Hon'ble High Court of Kerala had observed thus : "... ... ... Even though Airport is also rendering services to the passengers like restaurants, air-conditioning, facility for foreign exchange transactions by allowing Branches of Banks and other dealers to operate, duty free shop for incoming and outgoing passengers to purchase articles, etc., service tax can be demanded for s....