2013 (11) TMI 44 - AT - Service Tax

Airport service - Valuation - levy of service tax on Development fees recovered from passengers - Demand of service tax - Held that - none of the issues, germane to the exigibility to service tax has been considered by the adjudicating authority at all. Therefore, the matter needs fresh consideration. Accordingly, we remand the matter back to the adjudicating authority for de novo consideration of the various issues involved as discussed above, taking into account, inter alia, the decisions of the Hon ble Apex Court in the case of Cochin International Airport Ltd. 2009 (7) TMI 120 - KERALA HIGH COURT , Acer India Ltd. 2004 (9) TMI 106 - SUPREME COURT OF INDIA and the various instructions issued by the CBE&C and thereafter, pass a fresh order after granting the appellant a reasonable opportunity of being heard. The appellant is also directed to co-operate with the department and make their submissions without resorting to any dilatory tactics. Since the revenue involved is significant, we direct the adjudicating authority to pass a denovo order within a period of three months from the date of communication of this order. - matter remanded back

Issues Involved:
1. Whether the Development Fee (DF) collected by the appellant is subject to Service Tax.
2. The nature of DF - whether it is a tax, cess, or consideration for services rendered.
3. Applicability of judicial precedents and opinions from legal authorities on the matter.
4. The scope of taxable services under the Finance Act, 1994, in relation to DF.
5. The relevance of international legal decisions on similar issues.
6. The principle of not taxing an activity indirectly which is not taxable directly.

Issue-wise Detailed Analysis:

1. Whether the Development Fee (DF) collected by the appellant is subject to Service Tax:
The appellant, MIAL, argued that the DF collected from departing passengers was for funding airport development and not for any specific services rendered to passengers, thus not liable to Service Tax. The department contended that DF should be treated as consideration for taxable services under 'Airport Services' as defined in the Finance Act, 1994. The adjudicating authority confirmed the Service Tax demand along with penalties and interest.

2. The nature of DF - whether it is a tax, cess, or consideration for services rendered:
The appellant cited the Supreme Court decision in Consumer Online Foundation vs. Union of India, which held that DF is in the nature of a cess or tax for generating revenue for specific purposes under Section 22A of the AAI Act, 1994, and not a charge for services provided. The Kerala High Court in Commissioner of Central Excise, Cochin vs. Cochin International Airport Ltd. also held that User Fee collected by the Airport Authority is not liable to Service Tax as it is not for services rendered but for revenue enhancement. The Revenue argued that DF collected is for airport services and should be taxed accordingly.

3. Applicability of judicial precedents and opinions from legal authorities on the matter:
The appellant referenced opinions from the Ministry of Law & Justice and the Solicitor General of India, which stated that DF is not a consideration for services and thus not subject to Service Tax. The adjudicating authority, however, was not bound by these opinions and proceeded with the Service Tax demand.

4. The scope of taxable services under the Finance Act, 1994, in relation to DF:
The appellant argued that services related to airport construction and development are exempt under Notification No. 25/2012-ST and were excluded from Service Tax under previous definitions of Commercial and Industrial Construction Service and Works Contract Service. The Revenue maintained that any service provided at an airport is taxable under 'Airport Services' as per the Finance Act, 1994.

5. The relevance of international legal decisions on similar issues:
The adjudicating authority relied on a New Zealand High Court decision in Rotorua Regional Airport Ltd. vs. Commissioner of Inland Revenue, which held that GST is applicable on fees collected for airport access. The appellant argued that the scope and coverage of GST in New Zealand differ significantly from India's Service Tax laws, making this precedent inapplicable.

6. The principle of not taxing an activity indirectly which is not taxable directly:
The appellant cited the Supreme Court decision in Commissioner of Central Excise, Pondicherry vs. Acer India Ltd., which held that goods or services not taxable directly should not be taxed indirectly. The Punjab & Haryana High Court in Commissioner of Central Excise vs. Dr. Lal Path Lab (I) Ltd. also held that activities specifically excluded from tax under one entry cannot be taxed under another. The appellant argued that DF, being a cess or tax, should not be subject to Service Tax.

Conclusion:
The tribunal found that the adjudicating authority did not consider several critical issues, including judicial precedents and the nature of DF. Therefore, the matter was remanded for de novo consideration, directing the adjudicating authority to re-examine the issues in light of relevant Supreme Court decisions and CBEC instructions. The appeal was allowed by way of remand, and the stay petition was disposed of.

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