2020 (7) TMI 143 - AT - Service Tax

Classification of services - Works Contract Service or not - Construction / Building of Multi-Level Car Parking (MLCP) built by the appellant at New Delhi Airport (Terminal-III) - whether the same forms part of the Airport and hence exempt or is separate from the airport and taxable as works contract service? - HELD THAT - Multi- Level Car Parking constructed by the appellant at IGI Airport, New Delhi, is part of the Airport, as is evident from the definition of Airport in clause (b) of Section 2 of the Airport Authority of India Act, 1994, read with clause (2) of Section 2 of Aircraft Act, 1934. We further find that Aerodrome has been defined in clause (2) of Section 2 of Aircraft Act, means any definite limited ground or water area intended to be used, either wholly or in part for the landing and departure of aircraft and includes all buildings, shed, vessels and other structures thereon or appertaining thereto - thus, the Multi-Level Car Parking (is an amenity primarily for passengers), is adjacent to the main terminal building and the same is the part of aerodrome/ airport. Applicability of decision in the case of GMR Hyderabad Int. Airport Ltd., vs. CCE 2019 (3) TMI 818 - CESTAT HYDERABAD - HELD THAT - In the said case, the issue involved was that of allowability of Cenvat credit on capital goods, inputs and input services in the hand of GMR, used in construction of Hotel (Novotel), wherein this Tribunal held that the contractor who constructed the Hotel, have availed abatement under Notification No. 1/2006-ST, in discharging service tax liability, hence no Cenvat credit is allowable under conditions of the notification. Such facts are not obtaining in this appeal. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the Multi-Level Car Parking (MLCP) constructed at New Delhi Airport forms part of the Airport and is exempt from tax or is separate and taxable as "Works Contract Service".

Analysis:
The appellant, a concessionaire under an "Operation, Management, Development Agreement" (OMDA) with the Airport Authority of India, constructed the MLCP as part of mandatory capital projects for the airport's development. The Revenue argued that the MLCP cannot be considered part of the airport as it is not exclusively used by passengers. The impugned order confirmed a Service Tax demand against the appellant. The appellant contended that all activities related to the MLCP were integral to the airport as per the OMDA, making it eligible for exemption under Section 65(105)(zzzza) of the Finance Act, 1994.

The appellant relied on the OMDA clauses mandating the construction of the MLCP and providing essential services at the airport. They argued that the MLCP was an integral part of the airport, as supported by legal definitions of "Airport" and "Aerodrome". The appellant also highlighted the contractual obligations and sub-contracting arrangements related to the MLCP construction, emphasizing its necessity for airport operations.

The appellant cited precedents where similar amenities near airports were considered part of the airport and exempt from tax. They also challenged the timeliness of the Show Cause Notice and disputed the justification for levying service tax, penalties, and interest. The appellant contended that the audit findings leading to the notice were a mere change of opinion and not indicative of tax evasion.

In the judgment, the Tribunal concluded that the MLCP constructed by the appellant at the New Delhi Airport was part of the airport, aligning with legal definitions and precedents. The Tribunal differentiated the present case from the rulings cited by the Revenue, emphasizing the unique circumstances of the MLCP construction. Consequently, the appeal was allowed, setting aside the impugned order and granting the appellant consequential benefits.

In summary, the Tribunal ruled in favor of the appellant, determining that the MLCP formed an integral part of the airport and was exempt from tax as a result. The judgment highlighted the contractual obligations, legal definitions, and precedents supporting the appellant's position, ultimately leading to the decision to allow the appeal.