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TMI Blog2016 (7) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... as paid on the amount of fuel and insurance surcharge as well as on passenger service fee and airport tax. 2. Ld. advocate for the appellant contended that the appellant has not contested the demand pertaining to the service tax on fuel and insurance charge (commonly known as YQ & YR charges). He added that the demand pertaining to passenger service fee and airport taxes is not sustainable because passenger service fee was collected from the passengers and remitted to the airport authority and airport taxes were collected and remitted to various foreign airports and that the issue has been settled by CESTAT vide several judgements including in the cases of Lufthansa German Airlines Vs. CST, New Delhi [2016-TIOL-1086-CESTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the case of Lufthansa German Airlines Vs. CST, New Delhi (supra) by observing inter alia that the judgement in the case of British Airways PLC Vs. CST, New Delhi (supra) had taken support of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006, which has been declared ultra vires by Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. Vs. Union of India [2012-TIOL-966-HC-DEL-ST]. 5. As regards penalty under Section 78 ibid, we find that CEBC vide letter dated 341/S2/2006-TRU, dated 18.09.2007 addressed to the Chairman, Board of Airline Representatives in India stated as under:- "To Shri P.K.Gupta Chairman, Board of Airline Representatives in India C/o AirIndia, Air India Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may like to contact the jurisdictional service Tax officers. Yours faithfully (K Balamurugan) OSD (TRU) Tel: 23092634" From the above foregoing, it is clear that the airlines association has taken up the issue of fuel and insurance surcharge with the CBEC which issued the above-quoted clarification. In the circumstances, it is totally untenable to even allege suppression/ wilful mis-statement with regard to service tax demand pertaining to fuel and insurance surcharge. We have perused the Show Cause Notice also and find that the allegation of wilful suppression of taxable value has been made essentially on the ground that the appellant did not include the fuel and insurance surcharge, PSF and airport taxes in the assessable value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te withholding of information when assessee knew otherwise, is required before it is saddled with the liability the extended period. In the case of Continental Foundation Jt. Venture Vs. CCE, Chandigarh-I [2007 (216) ELT 177 (SC)], Supreme Court went to the extent of ruling the mere omission to give correct information is not suppression of facts unless it was deliberate and that an incorrect statement cannot always be equated with wilful mis-statement. Thus, the ingredients required for imposing penalty under Section 78 ibid are conspicuously absent in this case. 6. In the light of the foregoing analysis, we partly allow the appeal to the extent that the demand pertaining to passenger service fee and airport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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