9911796707
TMI Blog2019 (1) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... t ORDER Per Anil Choudhary: 1. The issue in this Appeal is whether service tax have rightly been levied on Development Fee , collected by the appellant, from the passengers at IGI Airport. 2. M/s Delhi International Airport Limited w.e.f 10.04.2017 (hereinafter Appellant) has filed the present appeal against the Order-In-Original No. DLI-SVTAX-003-COM-56-15-16 dated 12.07.2016 passed by the Commissioner of Service Tax, Delhi-III (Adjudicating Authority). Vide the impugned order the Adjudicating authority has adjudicated the following Show Cause Notices:- (a) Show Cause Notice dated 24.06.2011 issued vide F. No DL- II/ST/R-XI/SCN/DIAL/29/2011/987 for ₹ 128,33,10,337/- (b) Addendum to Show Cause Notice dated 19.09.2011 issued vide F. No DL-II/ST/R-XI/SCN/DIAL/29/2011/1501 for ₹ 3,55,65,653/- (c) Show Cause Notice dated 18.04.2013 issued vide F. No DL-II/ST/R-XI/SCN/DIAL/29/2011/292 for ₹ 44,37,26,187/- (d) Show Cause Notice dated 21.10.2014 issued vide F. No DL-II/ST/R-XI/SCN/DIAL/29/2011/1262 for ₹ 85,80,22,610/- Total ₹ 262,06,24,787/- 3. The appellant is a company incorporated under the provisions of Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission of final project cost estimates. The said approval; for levy of DF was allowed based on appellant s request to bridge funding gap of the project cost through DF. The appellant vide its letter dated 09.03.2009 intimated the Commissioner of Service Tax, New Delhi that levy of DF is in the nature of statutory levy to fund a public purpose and not towards rendition of any service per se. That the DF is not in connection with provision of taxable service, and hence not subject of levy of Service Tax. 7. The adjudicating Authority adjudicated the aforementioned Show Cause Notices vide the common impugned order wherein demand of ₹ 262,06,24,787/- was confirmed under Proviso to Section 73(1) of Finance act, 1994. An amount of ₹ 130,17,48,797/- already deposited by the appellant under protest, was appropriated, interest under Section 75 of Finance Act, 1994 demanded and penalties under Section 78 and 76 of the Act ibid, were imposed. Hence the present appeal. 8. Shri Somesh Arora, Advocate appeared for the appellant and Sh Amresh Jain, DR, represented Revenue. 9. Learned Counsel for appellant relies upon the definition of airport in Section 65(3c) of Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... space for waiting and necessary amenities and provision for boarding an aircraft. There is no assertion in the impugned proceedings that the passenger is required to effect payment for any of these activities. These facilities were available without any additional charge before the imposition of development fee and continue to be available after its quashing. No additional benefit accrued to the passenger during the period of levy of development fee. These are basic facilities that is inherent in the civil aviation sector in which the appellant, a non-public sector entity, is a recent entrant. 10. Civil aviation sector in India was, for long, under the monopoly of the Government of India with carriage effected by two corporations established by Acts of Parliament and the ground facilities under the control of the Ministry of Civil Aviation. Air carriage was de-nationalised first and, in keeping with the evolving trend of autonomy for infrastructure sector, management of airports were consolidated under a single authority with the enactment of the Airports Authority of India Act, 1994. Later on, airport operators were brought into the legislative framework by incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty - as held by the Hon ble Supreme Court in re Consumer Online Foundation (supra). 13. Consequently, the proximateness of the levy of development fee to the facilities offered under Section 12 of the Airports Authority of India Act, 1994 is not established. The decision of the Hon ble Supreme Court in re Consumer Online Foundation (supra) makes it abundantly clear that development fee is a levy for a future establishment. This reinforces our conclusion that there are no services being rendered for which this levy is being charged. 14. It is the contention of the Learned Authorized Representative that with the striking down of this levy in the case of the appellant, the amounts so collected do not require to be utilized in a manner prescribed in the Act and, hence, should be deemed to be collection for commercial purpose. We cannot agree with this contention because the Hon ble Supreme Court in the very same decision has directed that the amount so collected should necessarily be used only for the purpose intended in Section 22A of the Act. In that context, the attempt by Revenue to cite intention of the two parties by reference to Bharat Sanchar Nigam Ltd. su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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