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TMI Blog2018 (4) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of goods at Duty free Shop at the departure terminal is exports. The shop, known as ‘ Indian Gourmet’, is located only at the terminals of Mumbai International Airport, for which separate invoice was raised by the Mumbai International Airport Ltd to the Respondent. In such case, the Respondent is eligible to avail rebate of whole amount of service tax charged on rent amount - Further, in case of Delhi International Airport, the shop is located only at the departure terminal and, therefore, the Respondent is also eligible for the full rebate. Further, in case of processing / settlement charges charged by the bank for the card purchases made by the international passenger at the departure terminals at Mumbai, since the charges pertain to only departure terminal, therefore in such cases also the Respondent is eligible for full credit. Whether the balance service tax levied in respect of duty free shop located in Mumbai is available to what extent? - Held that: -once it is established that the agreement made to MIAL is in the nature of rent for use of space and nothing else, the appropriate method of apportionment between the arrival and departure area would be on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. (ii) The Respondent are selling the goods to their buyers it is most likely that they would have loaded their inputs costs on the sale price of the goods, which is a common business practice. No evidence has been talked about by the Appellate Authority to the effect that such input service tax etc. were not loaded on to the sale price of the goods. Thus, if the input service tax is already a part of sale price of the goods, further refund of the same to the Respondent may result in unjust enrichment. (iii) On perusal of ST-2 Certificate of assessee, it is found that the claimant holds single premises registration with registered address at Chhatrapati Shivaji International Airport, New Integrated Terminal 2, Sahar Road, Andheri (E), Mumbai, however the refund claim was filed for input services at Delhi International Airport also which is not admissible. (iv) The total charges to be paid to Mumbai Airport International Ltd. (MAIL) is in two parts i.e one based on revenue share and the other based on the actual cost incurred/ utilities licences fees etc. From the claim it is seen that they have taken the entire service tax amount and apportioned it on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, AR appearing for the revenue reiterates the grounds of appeal. He also submits that Duty free shop is in India where the Customs Act are applicable. At the time of receipt of the goods the IGM, Bill of Entry was filed and hence the goods entered in the territory of India. The goods were not exported as Export General manifest is not filed. Only when the goods are handed over to the passenger for taking outside India and hence the passenger is exporter. The refund is available only in respect of departure longue whereas it has been claimed on arrival portion in case of services such as rent where the services are to be apportioned on proportionate basis of revenue. The refund is in respect of Delhi and Mumbai Airport whereas the portion of refund pertaining to Delhi Airport is not available. 3. Shri A.R. Krishnan, ld. CA appearing for the Respondent supports the impugned order-in-appeal. He has also filed written submissions to the effect. He also relies upon the Tribunal s Final Order in case of CST Vs. Flemingo Duty free shop Pvt. Ltd 2017 TIOL 3744 CESTAT MUM to submit that the Tribunal has held that the goods that are sold at the duty free shop can only be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bench of the Tribunal in the Respondent s own case on the same issue has passed Final order No. A/89737-89744/17/STB dt. 16.08.2017 wherein the case was decided in assessee s favour. 23. The Commissioner (Appeals) has recorded clear finding that the entire movement and sale of articles at the duty free shops of the respondent happen under customs supervision and control and in accordance with Chapter IX of the Customs Act dealing with Warehousing of goods . The respondent files a bill of entry for warehousing treating the duty free goods imported by it to be imported goods as per procedure prescribed in Customs Act for bringing goods into duty free shop. Thus, the Respondent can be deemed as importer for Section 58 of the Act which allows imported goods to be warehoused without payment of duty on execution of a bond. It is also not disputed by either side that as per Public Notice No. 154/2004 dated 22.07.2004 issued by the Commissioner of Customs, Airport and Air Cargo Complex, Chennai and a Standing Order No.3/2008 dt. 3.3.2008 issued by the Commissioner of Customs, CSI Airport, Mumbai, relating to the customs procedure for operation of duty free shops, all the proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might have loaded their input costs on the sale price of the goods, which is common business practice and hence the refund claim of the Respondent may result in Unjust Enrichment. In this context, we find that in the Order-in-Original of the adjudicating authority did not make this aspect as a ground to reject the refund claim. Further, in case of exports, the question of unjust enrichment does not arise. The refund is claimed pursuant to Section 93 A of the Finance Act, 1994 read with Notification No. 41/2012-ST dated 29.6.2012, and hence the ratio of unjust enrichment would not apply to the same. This issue has already been dealt with by this Bench in the case of same assessee in the case of CST Vs Flemnigo Duty Free Shop Pvt Ltd (supra). 6. The Revenue has also contended that the refund claim is not admissible to the Respondent on the ground that the Respondent is having Duty Free Shops both at the arrival and departure lounges and they have claimed the refund of service-tax on the basis of shop size. It can be seen from the agreement that the total charges to be paid to M/s Mumbai International Airport Ltd (MIAL) in two parts - one based on revenue share and the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially in the nature of rent, since what the appellant essentially gets is only use of space for putting up a store and selling products. The fact that some of the payments are based on revenue generated by a particular shop would not make a difference in the nature and character of payment, which is essentially rent Consideration for use of space. If the consideration paid to MIAL is rent for use of space, then it has to be apportioned based on the area of space. (ii) The Appellant s contention is not without any force since historically rent is for use of space. Basically, what MIAL has charged is for providing space with amenities and nothing else. Only, the method of arriving at the amount of rent amount is a combination of Minimum guarantee plus a percentage of turnover in excess of the Minimum guarantee. But, in case there is no excess , the amount payable to MIAL would be the Minimum Guarantee. There is one single agreement with MIAL for providing space at the international airport, both at the arrival and departure terminal. The minimum guarantee is also one single figure and the excess of the percentage of turnover over minimum guarantee is also based on the aggregat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anagement. That the certificate is based on various riders and the auditor is not verifying the compliance of service-tax or central excise act. That the notification requires certain certification to be given by the statutory auditors, which is to be absolute and unqualified. As the Respondent has not submitted proper certificate, the refund claim is liable to be rejected. We find that in terms of Notification No, 41/2012 clause 3 (h) (B) and (i), the statutory auditors are required to certify that (i) The input services have been received by the claimant; (ii) The service tax payable thereon has been paid by the claimant; (iii) The specified services have been used for export of goods. 10. We find that the auditor has certified under clause III (a) of the certificate as under :- With respect to the sale of goods from the departure terminal (sales) during the period April 01, 2015 to June, 2015, as detailed in the statement, we have ensured that the service tax paid on the rental and the other charges for shops in departure terminal, as stated in the statement, is for services used for such sales during the said period . The above certification shows ..... X X X X Extracts X X X X X X X X Extracts X X X X
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