TaxTMI 
TaxTMI 
2021 (7) TMI 1495
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....tood adjourned to 01.10.2021. Therefore, instant application for preponing the date of hearing in the main case as well as in CM No.6894-2021. Notice of the application. Leraned counsel for the non applicants/petitioners as well as respondent nos.1 & 2, 5 & 6 accept notice and state that they have no objection to the preponement of the aforesaid application as well as the main case. In view of the agreed stand, CM No.8587 of 2021 is allowed. CM No.6894-2021 fixed for 01.10.2021 and main case fixed for 03.09.2021 are preponed and taken up for hearing today itself, thereby rendering CM No.6894-2021 fixed for 01.10.2021 as infructuous. MAIN CASE 1. In view of difference of opinion among judges of a Division Bench vide orders dated 24.7.2018, with respect to modification of interim order dated 4.1.2018 passed by earlier Division Bench of this court, this petition has been referred to a third Judge, hence come up for consideration before this court. 2. A Division Bench vide order dated 4.1.2018 passed interim order as below: " The petitioner-company has approached this Court with the following prayer:- " Civil Writ Petition under Article 226 of the Co....
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....vour of the petitioner. Even the Commissioner also upheld the aforementioned order, however, the Revenue assailed the orders before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) and vide detailed order dated 28.09.2017, the appeal of the Revenue was dismissed, though there is a limitation to challenge the same before the High Court and in paragraphs 15, 16 and 18 held as under:- "15. Section 66B of the Finance Act, 1994, permits levy of Service Tax only on the services provided or agreed to be provided in the taxable territory, in tune with Article 286 of the Constitution of India. Section 66B of Finance Act, 1994 (as amended) reads as under:- "66B. Charge of service tax on and after Finance Act, 2012.- There shall be levied a tax (hereinafter referred to as the service tax) at the rate of fourteen per cent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed." 16. The Service provided by way of rent of place where immovable property i.e. duty free shop is located, admitted....
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.... delivery of the goods is effected. Delivery may be physical also. In the instant case, at the duty free shops, which are admittedly outside the customs frontiers of our country, the goods had been sold to the customers by giving physical delivery. It is not disputed that the goods were sold by giving physical possession at the duty free shops to the customers. Simply because the sales had not been effected by transfer of documents of title to the goods and the sales were effected by giving physical possession of the goods to the customers, it would not mean that the sales were taxable under the Act. Thus, we do not agree with the aforestated submissions made by the learned counsel appearing for the Revenue." The Airport Authority has raised various invoices Annexures P5, P-7 and P-8 calling upon the petitioner to pay GST @18% by bifurcating as 9% towards SGST and balance 9% as CGST. Though the petitioner had paid the guarantee of October, 2017 under protest as averred in paragraph 18 and as regards demand notice for the month November, 2017, no payment so far has been made. However, in case the aforementioned demand is not made, respondent No.3 shall invoke Article 18.2 (....
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....f the amount and indemnity bond of the total amount of GST. He further submitted that the agreement with the concessionaire clearly provided that any tax leviable shall be the responsibility of the licensee. After application of GST, the licensee had the option to renegotiate or to exit the agreement. The proposal of the Petitioner to renegotiate the revenue share was not accepted by the Authority. Learned counsel for Respondent No. 1, 5 & 6/Department submitted that the Central Board of Indirect Taxes and Customs has taken a decision on July 20, 2018 clarifying that GST is leviable on the licence fee of the Duty Free Shops situated on the Airports. He seeks time to file affidavit. After hearing learned counsel for the parties and keeping in view the aforesaid developments, we modify the earlier interim orders, while directing the petitioner to deposit the amount of GST with the Authority and the amount so deposited shall be retained by the Authority in a separate account so as to be appropriated in terms of the final decision in the writ petition. In case the petitioner is held liable to pay the amount, the same shall be deposited with the Department, wh....
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....s it would tantamount to overreaching the order of the Hon'ble Supreme Court and as well as reviewing of the order in the absence of any application. " 4. Before adverting with question of modification of interim order dated 4.1.2018, it would be appropriate to have brief facts and arguments of the parties. Through instant petition under Article 226 of the Constitution of India, the Petitioner (a private limited company) is seeking declaration that Petitioner is not liable to pay GST, on sale of goods to passengers at the time of their arrival and departure, made from duty free shops (for short DFS) located at International Airport. The Petitioner is further seeking direction that no GST should be charged on the amount invoiced (licence fee i.e. Rent) by Airport Authority in terms of concessionaire agreement whereby shops have been allotted to the Petitioner by the Airport Authority. 5. The Counsel for the Petitioner would contend that matter has already been settled by a Division bench of Bombay High Court in Sandeep Patil Vs. UOI, 2019 (31) GSTL 398, holding that GST is not payable on supply of goods to passengers at the time of departure or arrival at International Airp....
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....ion fee till 30.06.2020, which Respondent No. 4 will seek to recover from the petitioner since as per judgment dated 07.10.2019, the supply of goods by DFSs to outgoing passengers is export of goods under IGST and zero rated supply, it would entitle the petitioner(s) to claim 100% of ITC and refund thereof effective from 01.07.2020 onwards. As per the reasoning assigned in para 37 of the judgment referred to above in Sandeep Patil, the petitioner shall pay the GST on input services including Concession Fee to Respondent No. 4 and claim ITC of the entire tax amount and thereafter claim refund of the same by following the procedure prescribed under Section 54(3) of the Central Goods and Services Tax Act, 2017 and Kerala Goods and Services Tax Act, 2017 read with Rule 89 of Central Goods and Services Tax Rules, 2017 and Kerala Goods and Services Tax Rules, 2017. " 8. A Division Bench of this Court vide order dated 04.01.2018 granted ex-parte interim stay restraining the Respondents from collecting GST and further directed the Petitioner to furnish indemnity bond equivalent of the amount of the guarantee viz-a-viz the sales portion of every month and furnish 25% of GST as bank guara....