Custom, Excise & Service Tax Tribunal
M/S British Airways vs Cst, Delhi on 14 October, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing/decision: 14.10.2013 For Approval and Signature: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Service Tax Appeal No. 56651 of 2013 with Service Tax Stay Application No. 57170 of 2013 (Arising out of order in original No. 190/GB/2012 dated 27.12.2012 passed by the Commissioner, Service Tax, New Delhi). M/s British Airways Appellant Vs. CST, Delhi Respondent
Appearance: Shri R. Murlidharan, Consultant for the appellant Shri Govind Dixit, DR for the Respondent Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member Final Order No.58004/2013 Per: Justice G. Raghuram:
Heard. While considering the stay application we consider it appropriate to dispose of the substantive appeal itself, as we discern a fatal flaw in the impugned adjudication order. We therefore waive the requirement of pre-deposit and dispose of the appeal after hearing ld. Consultant Sh. R. Murlidharan for the appellant/ petitioner and ld. DR Shri Govind Dixit for the Revenue.
2. Proceedings were initiated against the appellant by the show cause notice dated 25.07.2008 alleging that for the period December 2010 to December 2011 there was a non remittance of service tax on the component of other statutory fees and levies collected by the petitioner from its passengers for having provided the taxable transportation of passengers by air service. In a detailed response to the show cause notice, by its reply dated 20.04.2012 the appellant specifically and in a tabular form provided therein, claimed that several statutory levies and charges are incorporated in the amounts collected from its passengers, being statutory levies and charges imposed by other countries including the United States and the United Kingdom. These levies and charges are transportation tax; customs user fee; migration user fee; aphis user fee; and passenger facility fee, collected by various authorities in United States and air passenger duty collected by Revenue and Custom Department; air passenger duty collected by Custom and Excise Department and passenger fee collected by the airport authorities of U.K. Passenger service fee collected by Airport Authority of India were also claimed for exclusion from the taxable value. All these claims for exclusion from the taxable value were predicated on the basis of the provisions of Rule 6(2)(v) of the Service Tax (Determination of Value) Rules, 2006 as amended by Service Tax (Determination of Value) Amendment Rules, 2010, issued under a Notification No. 15/2010-Service Tax dated 27.02.2010 and published in the Indian Gazette.
3. The adjudicating authority however while extracting the appellants claim for exclusion of the value of the statutory levies and charges and incorporating the basis of such exclusion claimed by the appellant in the tabular form in its reply to the show cause notice, failed to discuss the claim of the appellant.
4. We are constrained to observe that such total non application of mind to a claim of the assessee predicated upon a statutory rule, amounts to abdication of of adjudicating responsibilities and derogates from the functional responsibilities of adjudication. The adjudication order is perverse and invites invalidation.
5. We therefore quash the order-in-original No. 190/GB/2012 dated 27.12.2010 passed by the Commissioner of Service Tax, New Delhi and remit the matter for de novo consideration by the said authority. On remit as ordered herein, the adjudicating authority shall issue a notice to the appellant for personal hearing and on consideration of its submission shall pass a fresh order clearly dealing with the appellants claim for exclusion of the component of statutory levies and charges, on the basis of the Service Tax (Determination of Value) Rules, 2006 amended in 2010, w.e.f. 27.02.2010. The adjudicating authority shall now and without fail record reasons while dealing with the assessees claim on the basis of 2006 Rules. Appeal is allowed above and the matter remitted for determination denovo.
(Justice G. Raghuram) President (Sahab Singh) Technical Member Pant 1