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TMI Blog2024 (10) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... owed in terms of the draft. To be carried out forthwith. 3. As per the aforesaid draft amendment, the prayer made in this petition is modified and the petition is restricted to the same in view of the subsequent developments which have taken place after filing of this petition as under: "c-1) In the alternative and without prejudice to prayers (a) and (b) above, this Hon'ble Court be pleased to order and direct Respondents No.1 and 2 not to insist on deposit of CGST and SGST by Respondent No.4 for the period starting from 01.07.2018 and ending on 06.11.2020 and permit the Petitioners to reimburse CGST and SGST for the months of April 2018 and May 2018 and direct Respondents No.1 and 2 to claim refund of CGST and SGST deposited by Respondent No.4 for the months of April 2018 and May 2018 upon filing of the requisite application for refund under Section 54 of CGST Act read with Rule 89 of the CGST Rules filed by the Petitioners." 4. The brief facts of the case are as under : 4.1. The petitioners are having a Duty Free Shop at the Arrival and Departure Terminal of the Sardar Vallabhbhai Patel International Airport, Ahmedabad for a term of seven years starting from 26th Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the petitioners on shops situated at Ahmedabad International Airport. The case of the petitioner is that no GST can be levied on such rent/license fee since the shop is situated in an area which is deemed to be outside the territory of India. The petitioners relied on the judgment of the Supreme Court in case of Indian Tourist Development Corporation Limited through Hotel Ashoka Vs. Assistant Commissioner of Commercial Taxes And Anr. Reported in (2012) 3 SCC 204. 2. Counsel for the petitioners pointed out that by four separate orders, three High Courts in the country have under similar situation entertained the petition and granted interim protection against the further recovery. Our attention is also drawn to an order dated 23.04.2018 passed by the Supreme Court rejecting the Special Leave Petition against one such interim order. 3. We have perused the interim orders passed by the various High Courts under similar circumstances. We notice that these orders were passed after by-parte hearing and in one such case, viz. Punjab and Haryana High Court had imposed a condition, providing 25% bank guarantee. 4. In view of the facts noted above, let there be Notice, returnab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITC and as such no prejudice will be caused to them, if they would first pay GST on the services provided to DFSs by MIAL and take ITC of the entire tax amount, and thereafter claim refund of the same by following the procedure contained in Rule-89." 5.2. Referring to the above order of the Bombay High Court, it was pointed out by learned Senior Advocate Mr. Saurabh Soparkar that the Central Board of Indirect Taxes by letter dated 25th June, 2020 addressed to the Principal Commissioner of CGST and Central Excise, Bombay has clarified that the proposal for filing SLP challenging the aforesaid order dated 07.10.2019 was examined and it was decided not to file SLP in the subject matter. 5.3. Learned Senior Advocate Mr. Saurabh Soparkar thereafter referred to the order passed by the Kerala High Court in case of the petitioners in Writ Petition No.6850 of 2018 wherein, the Hon'ble Kerala High Court following the decision of the Bombay High Court held as under : "33. In W.P.(C) No.6850 of 2018, I refrain myself from giving any declaration as sought qua accessibility of GST at Calicut International Airport but since this Court had granted the stay, which is operational during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th has paid GST for the period from 01.01.2018 to 31.03.2018, even though the petitioner has not paid, the first respondent Chas to refund to the fourth respondent. c) The petitioner has to pay GST on the concession fee to the fourth respondent and thereafter claim refund as per Section 54 of the CGST Act with effect from 01.03.2021." 5.6. Reference was also made to the decisions dated 30th March, 2021 of the Madras High Court in case of the petitioners in Writ Petition No.4055 of 2018 and WMP No.4981 of 2018 wherein, after referring to the aforesaid Judgments and Orders, the Madras High Court held as under : "13. These orders are based on the order passed by the Authority for Advance Ruling, Delhi in the case of M/s. Rod Retail Private Ltd. which was circulated by Central Board of Indirect Taxes and Customs vide a Communication dated 29.05.2018. Thus, the tax liability on account of supply of goods and service at the Airport Authority of India is revenue neutral issue in the hands of the petitioner having no implication on over all collection of tax as the petitioner is entitled for refund of input tax borne on various input / input services utilised at its Duty Free Shop lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83,38,993/- to the respondents No.3 and 4 within a period of four weeks from date of this order, along with interest as the order dated April 30, 2018 also makes it clear that the petitioner is liable to pay GST along with interest if it does not succeed in the writ petition. It is directed that interest shall be paid @ 8% per annum from the date of deposits made by Respondents No.3 and 4 till such time the entire reimbursement is done to them. The petitioner shall make necessary applications in accordance with law for claiming ITC and/or refund of the amount reimbursed to respondents No.3 and 4 and other amounts refundable and the same shall be duly considered by respondents No. 1, 5 and 6 with in eight weeks from the date of the order." 5.8. It was submitted that in the facts of the case, the respondent-Authorities have granted the refund claim of the Input Tax Credit including the services received from the respondent No.4 used towards supplies made at the Departure and Arrival Terminal made by the petitioners for the period from July, 2017 to March, 2018 and therefore, this petition for the aforesaid period has become infructuous. 5.9. It was further submitted that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to claim / appropriate / adjust the unutilized input tax credit by treating it as neutral, would defeat the very purpose and object of payment of tax and the refund of unutilized input tax credit for supplies as per the Scheme of the Act." 7.2. It was submitted that in view of the above averments made on oath by the respondent-authority and as the petitioners are entitled to the claim/appropriate/adjust the un-utilised input tax credit by treating it as neutral, there is no need to go into the larger question of levy of GST on the services rendered by the respondent No.3 and 4 of charging license/concession fee from the petitioners. 8. In view of the above submissions and considering the various Orders passed by the four different High Courts, we are of the opinion that it would be a futile exercise to consider the larger issue of levy of GST on the services provided to the petitioners by respondent Nos.3 and 4 in view of the same being revenue neutral exercise, as the petitioners are entitled to claim/apporpirate/ adjust the un-utilised input tax credit in view of the zero rated supply of sale of goods at the Duty Free Shops by the petitioners on the Arrival and Departure Termi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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