2019 (1) TMI 1307 - AT - Service Tax

Non-payment of service tax - airport services - renting of immovable property service - BAS - Commercial Coaching and Training services - demand of service tax - Held that - The demand is made under four categories of services namely Airport services, Commercial Coaching and Training services, BAS and renting of immovable property services. The charges collected by appellant for various activities like charter of aircrafts, hangar charges, repair charges etc. have not been specifically mentioned. In other words, the split up details in each category is not available. Interestingly, there is no annexure to the show cause notice showing the quantification of demand. Airport services - Held that - Without properly mentioning the different charges which fell under this category of airport service and also without verifying whether the same amount has spill over into other category of services, it would be unfair and improper to demand service tax alleging that every services which is provided within the airport area would fall under airport services - the said issue requires reconsideration by the adjudicating authority. Business Auxiliary Services - the commission received from CESSNA, USA for the activity carried out by the appellant in sales / marketing of aircrafts - export of services or not - Held that - The Tribunal in the case of Commissioner of Service Tax Vs. Blue Star 2018 (9) TMI 1421 - BOMBAY HIGH COURT has held that in cases of sales promotion on behalf of foreign principal, the benefit of services accrues outside India even if the activity is performed in India. For these reasons, the first limb of the requirement for export of service is satisfied. The second requirement is that the payment should be received in foreign exchange. In the present case, the appellant has adjusted the amount received by them in their accounts after deducting the expenses - thus, the activity tantamounts to export of service and therefore not liable to service tax. Business Auxiliary Services - goods supplied to Vikram Sarabhai Space Centre, Hindustan Aeronautics Ltd., Bharath Electronics Ltd. etc. - Held that - The process undertaken by the appellant amounts to manufacture. For these reasons, the demand of service tax under BAS for the job work done by the appellant cannot sustain and requires to be set aside - demand set aside. Commercial Coaching and Training Services - Held that - The appellant has produced documents showing the details of these courses which help the students / candidates obtain employment after the course. The courses are in the nature of aviation science, maintenance and repair of aircraft etc. The said issue stands decided in the case of Institute of Aeronautics Engineering 2017 (12) TMI 1378 - CESTAT NEW DELHI . Following the said decision, we are of the opinion that the demand under this category cannot sustain and requires to be set aside. Penalty - Renting of Immovable Property service - Held that - The issue whether Renting of Immovable Property is subject to levy of service tax was contentious during the disputed period. There were litigations pending in various High Courts as well as in the Tribunal. Thereafter, the legislation was amended in 2010 with retrospective application to bring the activity within the contours of service tax. Being an interpretational issue, we are of the opinion that the penalty imposed in this regard is unjust and requires to be set aside. Penalties imposed on airport services - Held that - Though this issue is remanded for verification, we find that the appellant having maintained proper accounts and the demand having been quantified on the basis of figures maintained in the accounts, we are of the opinion that in the absence of suppression of facts with intention to evade payment of tax, the penalty imposed under section78 for airport services cannot sustain - penalty set aside. The appeal is partly allowed and partly remanded.

Issues Involved:
1. Demand under Airport Services.
2. Demand under Business Auxiliary Services (BAS).
3. Demand under Commercial Coaching and Training Services.
4. Demand under Renting of Immovable Property Services.
5. Imposition of Penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Demand under Airport Services:
The appellant was accused of not discharging service tax on airport services, including charges for parking of aircrafts, maintenance, repair, and hangar charges. The appellant argued that they were not authorized by the Airport Authority of India to provide these services and that the show cause notice lacked detailed grounds and particulars. The Tribunal noted that the show cause notice did not specify the split-up details of the charges under various categories, making it unclear what charges formed the basis for the demand. The Tribunal held that it was improper to demand service tax on all services provided within the airport without verifying the specific charges and their correct classification. Therefore, the issue was remanded to the adjudicating authority for reconsideration and proper verification.

2. Demand under Business Auxiliary Services (BAS):
The demand under BAS included commission received from CESSNA Aircraft Co. USA and charges for fabrication works for government undertakings. The appellant argued that the commission was for export of services and thus not taxable, and that the fabrication works amounted to manufacture, exempting them from service tax. The Tribunal agreed with the appellant, stating that the commission received for sales promotion and marketing of aircrafts for CESSNA, USA, amounted to export of service, and the fabrication works indeed amounted to manufacture, as evidenced by central excise invoices. Consequently, the demand under BAS was set aside.

3. Demand under Commercial Coaching and Training Services:
The appellant provided training in aviation science and aircraft maintenance, which they argued were vocational training courses exempted under Notification No. 24/2004. The Tribunal agreed, referencing a similar case (Institute of Aeronautics & Engineering), and set aside the demand under this category.

4. Demand under Renting of Immovable Property Services:
The appellant contested only the penalties imposed under this category, arguing that the issue was highly contentious during the relevant period, with ongoing litigations and a retrospective amendment in 2010. The Tribunal acknowledged the contentious nature and set aside the penalties, though the demand and interest were upheld.

5. Imposition of Penalties under Sections 76, 77, and 78:
The Tribunal found that the show cause notice lacked allegations of suppression of facts with the intention to evade tax, and the Commissioner did not provide any findings of such suppression. Additionally, imposing penalties under both sections 76 and 78 was deemed incorrect. Consequently, all penalties under sections 76, 77, and 78 were set aside.

Conclusion:
The Tribunal remanded the matter concerning airport services for verification and quantification of demand, set aside the demands under BAS and Commercial Coaching and Training services, and upheld the demand under Renting of Immovable Property Services but set aside the penalties. The appeal was partly allowed and partly remanded.

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