2023 (4) TMI 613

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....Pragya Baghel, AOR ORDER Delay condoned. 2. We have heard learned counsel for the appellant and Mr. Arunabh Chowdhury, learned Senior Counsel for the respondent. 3. The CESTAT, Mumbai, vide order dated 10.02.2022 allowed the appeal filed by the respondent herein for the claim for refund of service tax in relation to the transaction with Mumbai International Airport Limited for the period 01.10.2011 to 30.08.201. Aggrieved by the same, the Commissioner of CGST & Central Excise, Mumbai East has filed the present appeal. The relevant facts in brief for the purpose of this appeal are as under. 4. The respondent M/s Flemingo Travel Retail Limited is engaged in the business of running Duty Free Shops at the arrival and departure te....

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....Assistant Commissioner of Commercial Taxes and Anr. (2012) 3 SCC 204, wherein, this court while considering Article 286 of the Constitution of India and a Constitution Bench judgment rendered in the case of J.V. Gokal & Co. Pvt. Ltd. Vs. Assistant Collector of Sales Tax AIR 1960 SC 595 held that there is a legal fiction that transactions outside customs frontiers of India would be said to have taken place outside India and in the course of import or export. It may be relevant to extract the following observations from the said judgment. "18. it is an admitted fact that the goods which had been brought from foreign countries by the appellant had been kept in bonded warehouses and they were transferred to duty free shops situated at ....

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....ace outside India. In other words, it cannot be said that the goods are imported into the territory of India till the goods or the documents of title to the goods are brought into India. Admittedly, in the instant case, the goods had not been brought into the customs frontiers of India before the transaction of sales had taken place and, therefore, in out opinion, the transactions had taken place beyond or outside the custom frontiers of India." Therefore, in our opinion, the transactions had taken place beyond or outside the custom frontiers of India. 9. Learned Senior Counsel appearing for the respondent also made a reference to the decision dated 31.08.2018 of the Central Government exercising revisional power in the matter o....

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.... and the Kerala High Court in the case of CIAL Duty Free and Retail Services Ltd. Vs. Union of India respectively. 13. Further, it must also be noted that no appeal was filed against the said orders, as can be seen from the communication dated 25.06.2020 and 06.04.2022 issued under RTI Act by the Legal Cell of the Central Board of Indirect Taxes and Customs which has been brought on record by way of Annexure A-14 to the IA No. 70768 of 2023 for placing additional documents on behalf of Caveator/respondent. 14. Significantly, the judgment dated 06.02.2019 in the case of Sandeep Patil (Supra) of the Bombay High Court was accepted by the Union of India in the case of Duty Free Shops of the present respondent. 15. We have considered th....