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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 ..... s set aside and the penalty under Section 78 ibid is also set aside. - Decided in favor of assessee. - ST/1005/2009-CU[DB] - Final Order No.52192/2016 - Dated:- 26-5-2016 - Mr. S.K. Mohanty, Member (Judicial) and Mr. R.K. Singh, Member (Technical) Mr. P.K. Sahu, Advocate-For Appellant Mr. Ranjan Khanna, DR-For Respondent ORDER Appeal has been filed against Order-in-Original dated 17.09.2009 in terms of which service tax demand of ₹ 48,30,131/- (along with interest and penalties) was confirmed on the ground that the appellant provided transportation of passengers by air service but did not pay service tax on the full value thereof in-as-much-as no service tax was paid on the amount of fuel and insurance surcharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax demand on fuel and insurance surcharge and indeed claimed to have paid the same with interest. We also note that the issues relating to passenger service fee and airport taxes was the subject matter of several judgements of CESTAT including Lufthansa German Airlines Vs. CST, New Delhi (supra) and Continental Airlines Inc. Vs. CST, Delhi (supra) wherein it has been held that no service tax is payable on these charges because these charges are not includible in the assessable value. Indeed CESTAT judgement in the case of British Airways PLC Vs. CST, New Delhi (supra) cited by Revenue was taken note of and distinguished by CESTAT judgement in the case of Lufthansa German Airlines Vs. CST, New Delhi (supra) by observing inter alia that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unambiguous. As explained by you, YQ and YR charges are integral part of the consideration received for the services provided. Method of vivisecting may not be of any relevance as long as the amount is in the nature of the consideration paid for the service provided. The legal status has been explained in person during the meeting with the representatives of Board of Airline Representatives in India. 3. In view of into above, you are advised to take immediate necessary action to pay the appropriate service tax on above mentioned service provided. For any further clarification on this issue, you may like to contact the jurisdictional service Tax officers. Yours faithfully (K Balamurugan) OSD (TRU) Tel: 23092634 Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es is not equivalent to collusion or wilful mis-statement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegation of wilful mis-statement. The onus is not on the assessee to prove its bona fides. In the case of CCE Vs. Chemphar Drugs Liniments [2002-TIOL-266-SC-CX], the Supreme Court held that something positive other than mere inaction or failure on the part of the assessee or conscious or deliberate withholding of information when assessee knew otherwise, is required before it is saddled with the liability the extended period. In the case of Continental Foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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