TaxTMI 
TaxTMI 
2025 (8) TMI 1001
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....Rs. 11,73,30,977/- has been rejected under Section 11B of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. 2. The facts in brief, which culminated into the said order are that the Delhi International Airport (Pvt.) Limited DIAL had acquired the Delhi Airport on lease, to operate customs duty free shops in the airport premises under Airport Authority of India agreement dated 04.04.2006. Pursuant to the same DIAL by two agreements dated 9.11.2006 and 07.02.2008 granted the license to run the said duty free shops in the designated areas of Delhi International Airport premises to Airport Retail Pvt. Ltd., the appellant, at a fixed monthly license fee to be paid to the DIAL along with share of gross revenue generated by....
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....65(105), of the Act, because letting of immovable property was specifically covered under Clause (zzzz) of section 65(105). Section 65A(2) of the Act also mandated that the sub-clause which provides the most specific description would be preferred to sub-clauses providing a more general description. Indisputably, if the transaction between DIAL and the petitioner is considered merely as letting of immovable property, then by virtue of section 65A(2)(a) the same would be considered as taxable service under clause 65(105)(zzzz) and could not be classified as 'airport services' under clause (zzm) of section 65(105) of the Act. The hon'ble High Court vide its order dated 05.09.2014 passed in WP (C) No. 4274 of 2010 had granted liberty t....
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....3. We have heard Shri Anand Sukumaran, learned counsel for the appellant and Shri S.K. Meena, Authorized Representative for Revenue. 4. Learned counsel for the appellant has submitted that if the transaction between DIAL and the petitioner is considered as a simple letting out of immovable property, the same would not fall within the taxable service of "airport service" under clause (zzm) of Section 65(105) prior to 01.07.2010. 5. Therefore, prior to 01.06.2007, the subject transaction was not taxable under sub-clause (zzm) in view of Circular dated 17.09.2004 which clarified that renting or letting out was not part of airport services. The High Court before noticing the aforesaid clarification, also held that in Home Solutions -I ren....
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....pplying Section 65A but yet service tax could not be levied in view of the clarified stand of the Government treating this SCN as having been issued under (zzm) w.e.f 1.07.2010 More appropriate taxing entry, as recourse to Section 65A is excluded b) Importantly, the Revenue has accepted the above position as laid down in decision of the High Court in the appellant"s case and to the best of appellant"s knowledge, has not appealed therefrom to the hon'ble Supreme Court, and therefore has attained finality. 7. Learned counsel further submitted that the appellant had filed an application in the High Court seeking direction to the department to refund the amounts paid by the appellant under both the show cause notices....
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.... at rest by hon'ble High Court Delhi vide their judgement dated 30.7.2014 in the Writ Petition Civil No. 4274/2010 as was filed by the appellant. It has already been held that for the period 2006-07 to 2009-10 the more appropriate tax entry after retrospective amendment in Section 65(105)(zzzz) was "Renting of Immovable Property". Hence this service tax could not be collected alleging the activity taxable under 65(105)(zzm), as "Airport Service" for the period in dispute. The said position stands duly accepted by the Revenue/department also. These observations are sufficient for us to hold that rejecting the refund claim on the ground of failure to fulfil legal aspect of classification is not sustainable. 10. We further observe tha....