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TMI Blog2016 (7) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... dition of services. - Decided against the assessee. Extended period of limitation - Held that:- , it is evident that appellant deliberately dilly dallied in providing the required information in spite of being asked repeatedly as a consequence of which the Revenue could eventually issue the show cause notice based upon whatever information was belatedly provided by the appellant although it did not provide the entire information which was sought. - Decided against the assessee. Validity of show cause notice - The appellant has strenuously contended that the show cause notice was issued to M/s Japan Airlines while the appellant is M/s Japan International Co. Ltd. and therefore, show cause notice was not issued to the appellant and hence no service tax can be demanded on the basis of show cause notice (leading to the impugned order) because there is no provision in the service tax law similar to Section 290 B of the Income Tax Act. - Held that:- the purpose of show cause notice (resulting in impugned order) has been fully and eminently served in this case and the impugned order has been issued in full and complete compliance of the principles of natural justice. In these circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Novel Exhibitors Private Limited to assert that no provision of the type of Section 290 B of the Income Tax Act exists in the service tax law. c) In the Annexure A to the show cause notice in column (5) the total value on which differential tax is to be paid is shown as the difference between column (2) (gross fare) and Col. (3) (refund gross fare) while the differential tax has been computed on the entire amount of column (2) namely, the gross fare. d) CBEC has clarified vide Instruction F.No.B.11/1/2002-TRU dated 1.8.2002 that taxes are not subject to service tax. e) The other charges at serial No.(xx) above are various kinds of taxes/passenger fee paid in different countries as was evident from the following charts submitted during personal hearing: Code No. Details of other Charges Details of Tax Country Name Authority name BP PSC, Departure Tax and contribution International Poverty Korea, Republic of Incheon International Airport Cor poration CN Airport Fee (International) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Security Charge Finland Airport Authority QH Embarkation Fee Egypt Civil Aviation Authority EQ Service Charge Egypt Cairo Airport Authority FI Passenger Fee (International) Finland Civil Aviation Administration RN Passenger Service Charge Netherlands Ministerie Van Verkeer waterstaat GB Air Passenger Duty (APD) United Kingdom HM Customs Excise FR Airport Tax France Direction Generale del' Aviation Civile BW Departure Tax Botswana Department of Civil Aviation QX Passenger Service Charge - Intl France Paid to Airport Paris Group xw Airport Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... QH Embarkation Fee Egypt Civil Aviation Authority YE Tourism Tax Yemen, Republic of Republic of Yemen Government ZY Passenger Service Charge Austria Austria Airport Authority AT Passenger Security Charge Austria Austria Airport Authority (f) It is evident from the letter of the Additional Commissioner of Anti-Evasion, Commissionerate of Service Tax, Delhi No.DL/ST/AE/Gr.V/Inq/68/07 dated 29/30.08.2007 that the Commissionerate had called a meeting of all the Airlines to disuse the issue relating to levy of service tax on Airlines and there was no willful, misstatement/suppression of facts on the appellant's part as it had submitted periodical returns and had clearly informed the Revenue Department that it was paying service tax only on the basic air fare. g) As the show cause notice has been issued in terms of the proviso to Section 73, in the absence of willful misstatement/supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in this case also because the Custom Department repeatedly asked the appellant to submit the figures as mentioned in para 4.2 of the adjudication order but the appellant did not timely do so. Even when some figures were eventually supplied, it did not supply figures relating to tickets issued prior to 1.5.2006 for the journey performed after 1.5.2006 and the amount collected against cancellation charges during the period 1.5.06 to 31.3.08 although it promised that they would be supplied in due course. 4. We have considered the contentions of both sides. It is true that Annexure A to the show cause notice in column No.5 does state value on which tax is to be paid and contains figures equal to gross fare (Col.2) minus refund (Col. 3) but in column (7) the service tax to be paid has been computed on the gross figures shown in column (2). However it is pertinent to mention that Annexure A is essentially a compilation of various figures and the basis for charging service tax has been given in the show cause notice in which it is clearly stated as to why calculation for differential service tax demanded has been made on the basis of gross fare receipts (given in Col.2 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT judgement 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]. 6. However, fuel surcharge (YQ), insurance surcharge (YQ) and insurance fuel surcharge (YR) are not the amounts collected to be reimbursed to any agencies. Section 67 of Finance Act, 1994 provides that assessable value for charging service tax is the gross amount charged by the service provider for such service. Therefore, these charges clearly constitute part of the gross receipt for rendition of service$. Incidentally, it may be pertinent to mention that the Airlines collectively took up this issue with CBEC which vide letter No.341/52/2006-TRU dated 18.9.2007 addressed to Chairman Board of Airlines Representative in India categorically clarified that fuel surcharge, insurance surcharge and insurance fuel surcharge ( YQ) (YR)are includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Airlines collectively with the CBEC and it had also clearly informed the Revenue Department that it paid service tax on the basic fare only. Normally, in these circumstances, the allegation of suppression of facts/misstatement may not have been sustainable. However, in the present case, we find that when the Custom Department came to know that service tax was being paid only on basic fare, it wrote to the appellant repeatedly asking for the details regarding the gross amount collected. Paras 2, 3, 4, 4.1. 4.2 of the impugned order are reproduced below as they clearly bring out the factual position as to how the appellant dilly dallied in providing the details in spite of being repeated asked and even eventually did not supply full information: 2. Intelligence was gathered that the assessee was not paying service tax on the gross value of the services provided under the category of service 'Transport of passengers embarking in India for international journey by Air Service' as per the provisions of Sec. 67 of the Finance Act, 1994 (the Act, in short) read with the Service Tax (Determination of Value) Rules, 2006. Accordingly, inquiries were made from the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrepancies, In reply to this, the assessee vide their letter dated 3.7.08, submitted an abstract of the tickets sold during 1.5.06 to 30.9.07 and copies of challans for the month of June 2006 and January 2007. It was further submitted that details for tickets issued priort to 1.5.06 but used on or after and amount collected against cancellation charges during 1.5.06 to 31.3.08 would be submitted in due course of time. However, no such details had been supplied by the assessee . From the foregoing, it is evident that appellant deliberately dilly dallied in providing the required information in spite of being asked repeatedly as a consequence of which the Revenue could eventually issue the show cause notice based upon whatever information was belatedly provided by the appellant although it did not provide the entire information which was sought. The provision relating to willful misstatement/suppression of fact have been explained by the Hon'ble Supreme Court in several judgments. For example, in the case of Uniworth Textiles Ltd. Vs. CCE, Raipur [2013 (288) ELT 161 (SC)], it was held that mere non-payment of duties is not equivalent to collusion or wilful mis-stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Limited (supra) may have come to its rescue. However, in the present case we find that show cause notice was issue to Japan Airlines, Chadralok Building, 36 , Janpath, New Delhi - 110001 and the appellant not only received the show cause notice but also responded thereto in full measure. It received all the communications in the name and address as above responded to those communications, It submitted its defence reply also and appeared for personal hearing before the primary adjudicating authority and did not raise any such objection. Thus the purpose of show cause notice (resulting in impugned order) has been fully and eminently served in this case and the impugned order has been issued in full and complete compliance of the principles of natural justice. In these circumstances, this contention is too flimsy to be of any consequence whatsoever. 9. Regarding simultaneous imposition of penalties under Section 76 and Section 78, we find that Gujarat High Court in the case of Raval Trading Co. (supra) has discussed the issue in great details and after taking note of the judgments : in the case of Bajaj Travels - 2012 (25) STR 417 (Delhi High Court), First Flight Couri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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