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2015 (7) TMI 1079 - AT - Service TaxDemand of Service tax along with interest and penalties - Online information and database access or retrieval service under reverse charge mechanism on the service provided by CRS/GDS - Assessee contended that amount was paid by its parent company in the USA to CRS/GDS service providers and not by it, so not liable to pay service tax - Held that:- by applying the decision of CESTAT in the case of British Airways [2014 (6) TMI 626 - CESTAT NEW DELHI (LB)], assessee has to be treated as a separate person vis-a-vis its parent company based abroad. Therefore, assessee cannot be held to be recipient of the service so as to make it liable to pay service tax on reverse charge basis in terms of the provisions of Section 66 A of Finance Act 1994. Demand of Service tax - Airport taxes collected - Includibility in assessable value - Held that:- CESTAT in many cases has clearly held that airport taxes were collected by the airlines on behalf of the airports and were paid to them and therefore are not includible in the assessable value for the purpose of levy of service tax. Therefore, demand unsustainable. Preponement and postponement charges - collected in connection of rendering the service in relation to providing transport of passengers by air service inasmuch as these charges are recovered for changing the dates of travel - Held that:- it is well-settled that it is the nature of charge and not its nomenclature which has to be considered. Merely, because an airline calls such charges penalties does not alter the nature of such charges which are clearly in relation to providing transport of passengers by air service because of service of change of journey dates is clearly in relation to transport of passengers by air service. Clearly, it is an interpretational issue and therefore the extended period in these circumstances is not invokable particularly when nothing concrete has been brought out in the show cause notice to show that there was any positive act of wilful misstatement/ suppression on the part of the appellant-assessee. That the extended period as well as the mandatory penalty under Section 78 ibid are not invokable in such circumstances is in conformity with the Supreme Court's observations in the case of Gopal Zarda Udyog [2005 (9) TMI 83 - SUPREME COURT OF INDIA] and Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA]. Thus, the demand only for the normal period (of one year) is sustainable and penalty under Section 78 ibid, is not imposable. However, penalty under section 76 ibid, is clearly attracted as that is not necessarily dependent upon the existence of wilful misstatement/suppression of facts as is evident from the wording of the said section. - Appeal disposed of
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