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TMI Blog2019 (7) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has filed their ST-3 returns from time to time and have maintained proper record of their transaction in the ordinary course of business. The appellant has made out case both on the question of Revenue neutrality and also as to non-applicability of extended period of limitation. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 51282 of 2015 - FINAL ORDER NO. 50917/2019 - Dated:- 19-7-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Rahul Shah, Ms. Niyati Jigyasi Ms. Divya Jaswant, Advocates for the appellant Shri Vivek Pandey, Authorised Representative for the respondent ORDER ANIL CHOUDHARY: The appellant M/s JetLite (India) Limited (formerly known as M/s Sahara airlines Limited) is inter-alia engaged in the business of providing service of transportation of passengers by air and for this purpose they are registered with the Service Tax Department. For providing the aforesaid output service, the appellant inter-alia receives services from Computer Reservation System (CRS companies), also known as Global ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This network is arranged by CRS companies with the help of separate organisation who are paid by CRS Companies for the service. 5.2 The second element relates to maintenance of an uploaded data base in respect of travel related data of airlines on real time basis by the data processing centre (DPC) or Master Computer System (MCS), as obtained from airlines computer system and then making provision for on-line data access or retrieval from data base of DPC or MCS by both airlines and the travel agents. 6. Thus, the DPC or MCS of CRS established by these companies receives, processes, stores and disseminates data about flight schedules, room availability, bookings done, fare information etc. It is for this purpose that the CRS companies, maintain a huge Master Computing System (MCS), which is connected, on one hand with airlines servers for updating of database of MCS with travel related data and on the other hand, with the computer terminals given to Air Travel Agents for updating of database of MCS with data relating of booking of seats on real time basis. This data base of MCS is parallel on real time basis, is available for access or retrieval of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,09,43,355/- was confirmed along with interest and penalty on the basis of the ground that the appellant is liable to pay service tax, as a service recipient, under reverse charge mechanism, on the services received from the CRS Companies, located outside India as the said services are classifiable under the taxing entry of OLIDAR Service. Being aggrieved, the appellant is in appeal before this Tribunal. 11. At the outset, learned Counsel for the appellant submits that the issue in the present case with respect to the classification of the services received from the CRS Companies by the appellant has been settled by Hon ble Supreme Court in the case of Jet Airways (India) Ltd. Vs. Commissioner of Service Tax, Mumbai-I vide order dt. 17.04.2017 wherein the appeal filed by Jet Airways (India) Ltd. ( Jet Airways ) against the CESTAT Order No. A/88840-88844/16/STB dt. 29.07.2016 read with CESTAT rectification Order No. M/94128-84137/16/STB dt. 02.12.2016 (Jet Airways CESTAT Order) was dismissed. The CESTAT, Mumbai in the Jet Airways Order held in favour of Jet Airways on the ground of revenue neutrality and limitation, and accordingly, set aside the entire demand alonwit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.4 In our considered view the appellant could have availed CENVAT credit of the service tax paid on reverse charge mechanism as they are liable to pay tax on output service hence Revenue neutral situation arises wherein the appellant pays the tax and takes the credit. We note that the issue as to confirmation of service tax liability arose on the payment made to CRS company, as decided by majority decisions in three cases namely British Airways, Thai International Public Co. Ltd., and Austrian Airways wherein the question of revenue neutrality arose, which was answered in favour of assesses therein. It is trite law that question of Revenue neutrality is a good ground, more so when the tax liability is being discharged under reverse charge mechanism. This very plea of revenue neutrality in an identical issue was raised in British Airways case and decided also. It is settled law when an issue is raised and decided in a judgment, the ratio applies. 10.7 In our considered view, we have to read the order holistically, i.e. British Airways case; on merits is against the appellant in this case while on the issue of revenue neutrality the order of British Ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, he could not have followed the procedure of Rule 56A (erstwhile) for the claim of set-off, which has to be extended, if the demand is ultimately upheld. It is only when after the demand stands confirmed, against an assessee, who is even challenging the same on merits, he can always take an alternative plea of availability of the demand as cenvat credit to him leading to Revenue neutral situation. As such, even on this count, the appellant is bound to succeed. 52. I am also of the view that the demand, having been raised by invoking the longer period of limitation is hit by the provisions of Section 11A of the Act. My ld. Brother Shri D. N. Panda in his proposed order has held that in as much as the appellant was not registered under the Act and failed to file return periodically their plea of bona fide belief does not arise and there was a deliberate breach of law to cause evasion. I am afraid that I do not find myself in agreement with the said observations made by my brother. If non-registration and non-filing of returns is the criteria for rejecting the appellant s plea of bona fide belief and holding against them, the plea of limitation would not be available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the contention, ld. Authorised Representative for the Revenue states that appellant have conceded on merits in view of the ruling of this Tribunal of coordinate Bench in the case of Jet Airways (India) Ltd. (supra) which have been confirmed by the Apex court. No service tax is payable on OLIDAR services for the period post July 2012, as the place of provision of service after July 2012, in terms of rule 9 of Place of Provision Rules, falls outside India. The party also claimed that realising this fact, Department in a U-turn, demanded reversal of cenvat credit availed by the appellant for the tax paid post July, 2012, vide another SCN F. No. 1-26(232)GST/Adt.I/C-6/Gr.51/Jetlite/2017-18/440 dated 17.07.2018 issued by GST Audit-I Delhi Commissionerate. 17. Learned Authorised Representative further submits, in case the Hon ble Tribunal in the present case concludes against Revenue s invocation of the extended period, it is further prayed that demand may be upheld for the normal period in terms of the Hon ble CESTAT judgment in the case of Shree Ranie Gums Chemicals Pvt. Ltd. Vs. Commr. of C.Ex. Jaipur-II [2017 (4) GSTL 340 (Tri. Del.)], wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the Hon ble Supreme Court judgement in the Angadpal Industries Pvt. Ltd. Case [2015 (325) ELT 228 (SC)] to claim that Revenue neutrality, implies that no duty has been paid, it is submitted that the claim of the appellant is wrong as facts of the Angadpal case are completely different and no such ratio was laid down by the Apex Court. 21. Having considered the rival contentions, we find that admittedly the impugned order-in-original arose from the subsequent show cause notice dated 23.10.2013 and admittedly an earlier show cause notice was issued dated 22.04.2009. Thus, the Revenue was aware of the facts of the appellant case. Thus, there is no justification for invocation of extended period as held by Hon ble Supreme Court in the case of Nizam Sugar Factory vs. CC 2006 (197) ELT 465 (SC). Secondly, the issue is wholly Revenue neutral as the said input service was directly relatable to rendering of output service by the appellant. It is admitted fact that the appellant has discharged service liability on the output service transportation of passengers by air service. Thus, there is no case of any constumuous conduct or malafide on the part of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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