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TMI Blog2023 (4) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... 71 - SC ORDER ] Duty Free Shops, whether in the arrival or departure terminals, being outside the customs frontiers of India, cannot be saddled with any indirect tax burden and any such levy would be unconstitutional. Therefore, if any tax is levied, the same cannot be retained and the Duty Free Shops would be entitled for refund of the same without raising any technical objection including that of limitation. In the end, learned counsel appearing for the appellant made a passing reference to two pending appeals which according to him raises an identical issue and thus, a request was made to tag this appeal along with the pending appeals. Appeal dismissed. - HON'BLE MR. JUSTICE KRISHNA MURARI HON'BLE MR. JUSTICE SANJA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Airport for the period 01.10.2011 to 30.06.2017. 6. The original adjudicating authority vide order dated 05.07.2019 rejected the refund claims on the ground that payment of service tax on the renting of immovable property of the concerned Duty Free Shops has rightly been levied and is not liable to be refunded as per the provisions of the Finance Act, 1994. The said order was challenged by the respondent assessee, and an appeal was filed before the Commissioner, Appeals, which was dismissed by the order dated 25.09.2020. 7. Aggrieved by the same, the respondent assessee approached the CESTAT, by filing an appeal which has been allowed by the impugned order dated 10.02.2022. 8. The Tribunal came to the conclusion that Duty Fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods are not cleared from the customs till they are brought in India by crossing the customs frontiers. When the goods are lying in the bonded warehouses, they are deemed to have been kept outside the customs frontiers of the country and as stated by the learned senior counsel appearing for the appelant, the appellant was selling the goods from the duty free shops owned by it at Bengaluru International Airport before the said goods had crossed the customs frontiers. 30. They again submitted that in the course of import means the transaction ought to have taken place beyond the territories of India and not within the geographical territory of India . We do not agree with the said submission. When any transaction takes plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terminals shall be deemed to be the area beyond the customs frontiers of India. The Writ Petition (C) No. 564/2019 filed challenging the order of the Central Government against the decision of the Bombay High Court was dismissed by this court vide order dated 10.05.2019. 11. Learned Senior Counsel appearing for the respondent also made reference to a judgment dated 28.11.2018 of the Bombay High Court rendered in Writ Petition No. 8034 of 2018, A1 Cuisine Pvt. Ltd. Vs. Union of India, on an identical issue. The Bombay High Court in the abovementioned case, while relying on the Aatish Altaf Tinwala case (Supra), held that the duty free shops in the international arrival or departure terminals shall be deemed to be the area beyond the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the same cannot be retained and the Duty Free Shops would be entitled for refund of the same without raising any technical objection including that of limitation. 16. In the end, learned counsel appearing for the appellant made a passing reference to two pending appeals which according to him raises an identical issue and thus, a request was made to tag this appeal along with the pending appeals. 17. In view of the legal position as discussed above, we are not inclined to keep the instant appeal pending for consideration with the already pending appeals, which were filed prior to the acceptance of the well reasoned orders of the Bombay High Court, the Kerala High Court and the Union of India. However, we leave it open to the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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