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TMI Blog2019 (10) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... or home consumption and the warehoused goods are exported by the Duty Free Shop, therefore the levy Customs duty and of the IGST do not arise. The sale of goods at these outlets at the International departure terminals is an export of goods under Customs Act. The respondent can very well claimed to be an exporter under Section 2(20) of the Customs Act, 1962 since it is the respondent who is the seller and is selling the goods in the SHA at the International departure terminal to the international passengers going abroad. These goods are ultimately taken outside India by those passengers. In this way the passengers can be termed as carrier only and not the exporter of those goods. The exporter is the respondent. Therefore the issue of unjust enrichment will not arise here. The goods sold by the respondent-assessee at its outlets situated at the Security Hold Area at the departure terminal of Mumbai International Airport, are exports and the respondent is an exporter and the respondent-assessee is therefore eligible for rebate under N/N. 41/2012, dated 29.6.2012. Appeal dismissed - decided against Revenue. - Service Tax Appeal No. 88759 of 2018, 88760 of 2018, 88762 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved and the amount of refund claim involved in these appeals are as under:- Sr.No. Period of claim Amount of rebate 1. Oct, 2015 to Dec, 2015 ₹ 12,31,247/- 2. Jan, 2015 to March, 2015 ₹ 10,78,569/- 3. July, 2015 to Sept,2015 ₹ 12,28,575/- 4. April, 2015 to June, 2015 ₹ 11,28,911 4. The Adjudicating Authority through four separate Orders-in- Original, sanctioned the refund of the amount claimed by the respondent-assessee. Aggrieved, Revenue filed four Appeals before the Commissioner (Appeals) and the learned Commissioner vide common impugned order in all the four Appeals, while relying upon the Tribunal s decision in respondent-assessee s own case on the identical issue, upheld the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before deciding the issue involved in this Appeal, it is necessary to find out whether the sale of goods from these two outlets of the respondent to the passengers going abroad amount to Export ? While going through the case records, I find that the respondent-assessee has procured duty/tax paid goods from domestic market and sold them at its departure terminal outlets located in the SHA to the international passengers going abroad. It is true that there was no option for the passengers going abroad but to take the goods out of India which were purchased by them from these two outlets of the respondent-assessee. Although according to the respondent these outlets are not the duty free shops, but had it been a duty free shop still the situation would not have been different. In a recent decision, the Hon ble High Court of Judicature at Allahabad in the matter of Atin Krishna vs. UOI; reported in 2019 (25) G.S.T.L. 390 (All.) has held that the supply of warehoused goods by the Duty Free Shops at the departure terminal is to the departing International passengers i.e. the passengers travelling from India to a foreign destination. Thus, the goods supplied are never cleared for home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to passengers at the International departure terminal DFS are not cleared for home consumption nor for removal to another warehouse or otherwise provided in the Customs Act, 1962 and hence the goods are cleared without payment of duty only for export under Section 69 of the Customs Act under an invoice which is also deemed to be a shipping bill. 25. Hence the sale/supply at the International departure terminals DFS would be export of goods under Customs Law and therefore will be considered as exports of goods under GST Act, since the definition of export and export of goods under both the laws is the same. 26. The supply from DFS of the respondent No. 3 at departure terminal of the Airport is similar to a FOB export, the only difference being that in the case of DFS supply, the International passenger also acts as carrier of goods out of India. 27. The Bombay High Court in the case of Sandeep Patil (supra) has taken a similar position with respect to DFS which reads as under :- 6. Respondent No. 2 while selling the goods from its duty free shops at departure terminal hold themselves as exporters o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent petition are of a different nature as compared to the operation undertaken from the DFS. In all the four cases, the destination of the goods were very clear viz aircraft (in Burmah Sheel and Narang Hotel) and ship (in Coching Coal and Madras Marine). Thus, the destination was within the Indian territorial waters. In the present case of DFS, it is very clear that if a foreign destination of the foreign going passenger, the passenger also acts as a carrier and the goods are appropriated outside India. In view thereof, it is clear that the decisions relied upon by the petitioner are misplaced, have no relevance to the facts of the present PIL and therefore cannot be relied upon in the context of the business undertaken by the answering respondent No. 3. 29. In view of above discussion, we find that exemption under GST on goods supplied to and from DFS is rightly conferred and the claims of any accumulated unutilized ITC are refundable to respondent No. 3. The petition is devoid of merit and the same deserves to be dismissed. 30. Accordingly, we dismiss the Public Interest Litigation. 31. No order as to cost. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner (Appeals) that the respondent-assessee is eligible for rebate under notification No.41/2012-ST, dated 29.6.2012. In another decision of this Tribunal in respondent-assessee s own case, this Tribunal in the matter of Commissioner of Service Tax-VII vs. Flemingo Duty Free Shop Pvt. Ltd.; 2018(8) GSTL 181(Tri-Mum) again upheld the decision of the Commissioner (Appeal) therein and recorded that the respondent-assessee is eligible for rebate under the aforesaid notification dated 29.6.2012. In the said decision, the Tribunal also rejected the plea of unjust enrichment raised by the department. Although in the instant Appeal, one of the grounds raised by the revenue is that the aforesaid decision of the Tribunal reported in 2018(8) GSTL 181 (Tri-Mum), which has been relied upon by the learned Commissioner while dismissing the Appeal filed by the department, has not been accepted by the department and the department has filed application for Rectification of Mistake in the said matter and the same is pending before the Tribunal, but the learned Chartered Accountant submits that the said Rectification of Mistake application filed by the department has also been dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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