Supreme Court - Daily Orders
Commissioner Of Cgst And Central Excise ... vs Flemingo Travel Retail Ltd on 18 August, 2023
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
Review Petition (Civil) No 1017 of 2023
in
Civil Appeal No 2753 of 2023
Commissioner of CGST and Central Excise Mumbai East ...Petitioner(s)
Versus
Flemingo Travel Retail Ltd ...Respondent(s)
ORDER
1 The Commissioner of CGST and Central Excise seeks a review of a judgment dated 10 April 2023 in Civil Appeal No 2753 of 2023. 2 The appeal before this Court arises from an order dated 10 February 2022 of the Customs, Excise and Service Tax Appellate Tribunal 1 at Mumbai. The CESTAT allowed an appeal instituted by the respondent for a refund of service tax in relation to a rental transaction with the Mumbai International Airport Limited for the period 1 October 2011 to 30 June 2017.
3 The respondent engages in the business of conducting duty free shops at the arrival and departure terminals at the international airports at Mumbai and Delhi. The respondent filed an application claiming a refund of service tax paid in Signature Not Verified Digitally signed by Sanjay Kumar respect of the charges levied by Mumbai International Airport for the period in Date: 2023.08.19 12:20:58 IST Reason: 1 “CESTAT” 2 question on the basis of a notification 2 dated 29 June 2012 of the Union government in the Ministry of Finance. The adjudicating authority rejected the refund claimed on the ground that the payment of service tax on renting of immovable property of the duty free shops was not liable to be refunded in terms of the provisions of the Finance Act 1994. The order was affirmed by the Commissioner (Appeals).
4 In appeal, the CESTAT came to the conclusion that the duty free shops situated at international airports constitute a global market competing in a tax exempt environment and the levy of service tax was bereft of lawful authority. The CESTAT placed reliance on a decision of this Court in Indian Tourist Development Corporation Limited through Hotel Ashoka v Assistant Commissioner of Commercial Taxes3.
5 The Union Government has sought to submit that the position as it obtains in relation to goods is distinct from the applicable statutory regime in respect of services. Moreover, it has been stated in the memo of appeal that sixteen appeals involving a similar issue are pending before this Court arising from orders dated 28 September 2017 and 26 October 2018 of the CESTAT at its West Zonal Bench in Mumbai. Hence, it is urged that all the appeals ought to have been set down for hearing together. A request for tagging this appeal with the appeals pending in this Court was made.
6 In its judgment dated 10 April 2023, this Court affirmed the judgment of the CESTAT noting that against a judgment of the High Court of Judicature at 2 No 41/2012-Service Tax 3 (2012) 3 SCC 204 3 Bombay dated 28 November 2018 in Al Cuisine Pvt Ltd v Union of India4, a Special Leave Petition5 was dismissed by an order dated 14 December 2018 of this Court.
7 During the course of the judgment of which review is sought, this Court referred to the view taken by the Kerala High Court in CIAL Duty Free and Retail Services Ltd v Union of India and by the High Court of Judicature at Bombay in Sandeep Patil v Union of India.
8 The Additional Solicitor General appearing on behalf of the Union of India submits that when the appeal of the Union of India was taken up, a request was made to tag the appeal with the companion appeals.
9 The submission of the Additional Solicitor General is borne out by the following observations contained in paragraph 16 of the judgment under review, which is extracted below:
“16. In the end, learned counsel appearing for the appellant made a passing reference to two pending appeals which according to him raises an identical issue and thus, a request was made to tag this appeal along with the pending appeals.”
10 We have perused the memo of appeal lodged by the Commissioner against the judgment of the CESTAT which formed the subject matter of the appeal as well as the grounds in the review petition.
11 Substantial grounds on law have been advanced by the Union Government during the course of oral hearing in support of its case that the applicable regime 4 Writ Petition No. 8034 of 2018 5 SLP (C) 33011 of 2018 4 in regard to goods stands on a distinct footing from the regime applicable to the levy of service tax and later, under IGST.
12 From the judgment under review, we find that after recording the view which was taken by the CESTAT, this Court adverted to the decision of the High Court of Judicature at Bombay in Sandeep Patil (supra) and that of the Kerala High Court in CIAL Duty Free and Retail Services Ltd (supra). None of the submissions of the Union of India have been recorded or considered. The judgment only adverts to the submissions of the respondents.
13 The Additional Solicitor General submitted that the decisions of the High Court of Judicature at Bombay and the Kerala High Court pertain to goods and not to the levy of service tax on the renting of immovable property. Whether this would make any difference to ultimate outcome is debatable, and would, therefore, require substantial consideration.
14 At this stage, absent such a consideration in the judgment under review and since the issue which is raised would have large consequential ramifications, we are of the considered view that the review should be allowed. 15 Apart from the above reasons, as already noted, sixteen other appeals involving the same issue were stated in the synopsis to the paper book to be pending. The Additional Solicitor General submitted that apart from the sixteeen appeals which were referred to in the memo of appeal, there are nine other appeals. The details of the above appeals are set out in the tabulated statement below: 5
“S.N Party Name Diary No Court Case No. Order Date O 1 Flemingo Duty 17544 - CESTAT APP- 28-09-17 Free Shop (P) Ltd. 2019 West Zonal 87234-
Bench at 2016
Mumbai
2 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87235-
Bench at 2016
Mumbai
3 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87236-
Bench at 2016
Mumbai
4 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87237-
Bench at 2016
Mumbai
5 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87238-
Bench at 2016
Mumbai
6 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87239-
Bench at 2016
Mumbai
7 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87240-
Bench at 2016
Mumbai
8 Flemingo Duty 17544 - CESTAT APP- 28-09-17
Free Shop (P) Ltd. 2019 West Zonal 87241-
Bench at 2016
Mumbai
9 Flemingo Duty 17544 - CESTAT RA-85493- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
10 Flemingo Duty 17544 - CESTAT RA-85498- 26-10-18
6
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
11 Flemingo Duty 17544 - CESTAT RA-85499- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
12 Flemingo Duty 17544 - CESTAT RA-85500- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
13 Flemingo Duty 17544 - CESTAT RA-85501- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
14 Flemingo Duty 17544 - CESTAT RA-85502- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
15 Flemingo Duty 17544 - CESTAT RA-85503- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
16 Flemingo Duty 17544 - CESTAT RA-85504- 26-10-18
Free Shop (P) Ltd. 2019 West Zonal 2018
Bench at
Mumbai
17 Aero Art Emporium 3859-2019 CESTAT A-118- 02-01-25
Pvt. Ltd. Delhi 2007
18 Aero Art Emporium 3859-2019 CESTAT A-142- 02-01-25
Pvt. Ltd. Delhi 2007
19 Jet Airways (India) 47213- Delhi High WPC-9090- 04-10-18
Limited 2018 Court 2016
20 Aero Art Emporium 48258- Delhi High WP (C) 04-10-18
Pvt. Ltd. Through 2018 Court 6933-2015
its Director
21 Vasu Clothing 9828-2019 Madhya WP-17999- 17-12-18
Private Ltd. Pradesh 2018
7
High Court
22 Airports Authority 32074- CESTAT FO-50001- 02-01-15
of India 2017 Delhi 2015
23 Airports Authority 32074- CESTAT FO-50002- 02-01-15
of India 2017 Delhi 2015
24 Delhi Duty Free 25755- CESTAT STA 51827 28-02-23
Services 2023 Delhi of 2021,
50901 of
2020 and
50902 of
2020
25 Flemingo Travel 25758- CESTAT Service 15-03-
Retail 2023 West Zonal Tax 2023”
Bench Application
(Misc) No
85986 of
2022 in
Service
Tax Appeal
No 85046
of 2021
16 We accordingly allow the review by recalling the judgment dated 10 April 2023.
Civil Appeal No 2753 of 2023 shall stand restored to the file of the Court. The Civil Appeal shall stand tagged with the above appeals. The Registry shall obtain administrative directions so that all the appeals can be clubbed together and be heard by one Bench expeditiously.
17 Before concluding, it would be necessary to record that in the memo of appeal it has been sought to be submitted that there was a breach of the principles of natural justice and that counsel of the Union of India was not heard. The position has been disputed by Mr Mukul Rohatgi, senior counsel appearing on behalf of 8 the respondent.
18 In the view which has been taken, it is not necessary for this Court to enter any finding on the above aspect.
19 The appeal having been restored to the file for final disposal, we direct that no coercive steps shall be taken for the recovery of the dues, pending the disposal of the appeal.
…………...…...….......………………........CJI.
[Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [Sanjay Karol] …..…..…....…........……………….…........J. [Manoj Misra] New Delhi;
August 18, 2023
-S-
9
ITEM NO.301 COURT NO.1 SECTION XVII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
R.P.(C) No. 1017/2023 in C.A. No. 2753/2023 COMMISSIONER OF CGST AND CENTRAL EXCISE MUMBAI EAST Petitioner(s) VERSUS FLEMINGO TRAVEL RETAIL LTD Respondent(s) (WITH IA No. 118136/2023 - PERMISSION TO PLACE ADDITIONAL FACTS AND GROUNDS) Date : 18-08-2023 This petition was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJAY KAROL HON'BLE MR. JUSTICE MANOJ MISRA For Petitioner(s) Mr. N. Venkataraman, A.S.G. Mr. Mukesh Kumar Maroria, AOR Ms. Praveena Gautam, Adv.
Ms. Priyanka Das, Adv.
Mr. Ashok Panigrahi, Adv.
Mr. H.R. Rao, Adv.
Mr. Zoheb Hussain, Adv.
For Respondent(s) Mr. Mukul Rohatgi, Sr. Adv.
Mr. Arunabh Chowdhury, Sr. Adv. Mr. Abhay Jadeja, Adv.
Mr. Varun Satiya, Adv.
Mrs. Ranjeeta Rohatgi, Adv.
Mrs. Pragya Baghel, AOR Mr. Karma Dorjee, Adv.
Mr. Deechen W. Lachungpa, Adv.10
UPON hearing the counsel the Court made the following O R D E R 1 In terms of the signed order, the review petition is allowed by recalling the judgment dated 10 April 2023. Civil Appeal No 2753 of 2023 shall stand restored to the file of the Court. The Civil Appeal shall stand tagged with the appeals mentioned in the signed order. The Registry shall obtain administrative directions so that all the appeals can be clubbed together and be heard by one Bench expeditiously.
2 Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) DEPUTY REGISTRAR ASSISTANT REGISTRAR (Signed order is placed on the file)