TMI Blog2011 (6) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent. ORDER M.V. Ravindran, Judicial Member. Both these appeals are filed against Order-In-Original No. 40/2006, dated 27-10-2006. In Appeal No. 659/07, revenue is aggrieved by the Order-In-Original, which has dropped proceedings initiated by the Show Cause Notice while in Appeal No. 28/2007, assessee is in appeal against the confirmation of the service tax demand along with interest by the adjudicating authority and consequent penalty thereof. Since the issues involved in both appeals are identical, they are being disposed off by a common order. 2. Relevant facts that arise for consideration in both the appeals are the assessees herein were operating a lounge at Indira Gandhi International Airport, New Delhi. It appeared to revenue authorities that the services rendered by the assessee in the said lounge as regarding providing food, drinks, giving amenities, facilities to the passengers at airport like space to sit relax and watch TV, read newspapers magazines, providing of liquor, computer with internet facilities etc. will be services rendered which would be covered under the category of "Airport services" as provided under section 65(105)(zzm) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competence to levy service tax on these deemed sales and it is his submission that in this case deemed sale as supply of food is a part of service or by way of service and thus forms part of an integrated set of activities. 3.3 It is his submission that operation and maintenance of the 'clipper lounge' at the airport terminal is not an airport authority service. 3.4 He would draw our attention to the definition of taxable service on said services with effect from 10-9-2004 and submit that in order to be covered under 'airport services', the ingredients which are required are : (a) service must be provided by the Airport Authority of India (AAI) or any person authorised by it; (b) Airport authority also includes a person having charge of management of an airport or civil enclave; (c) service can be provided to any person; and (d) service must be provided in an airport or civil enclave. 3.5 It is his further submission that vide Circular No. 80/10/2004-ST, dated 17-9-2004, the services which were liable to be taxed under the issue services were cargo and passenger handling such as security, transit facilities, landing charges, terminal navigation charges, parki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection in the specific amendment encapsulated in section 67 of the Act. It is his submission that there is no estoppel in tax law as even though the assessee has got registered under 'Airport Services' and started filing returns. It is his submission that the Show Cause Notice which sought to invoke the extended period of limitation on the ground is incorrect. The appellant has not been discharging Service Tax solely on account of their bona fide belief that the transaction in question did not attract service tax as it was a sale. 4.1 Ld. DR arguing on the points made by the ld. counsel in Oberoi Flight Services case would submit that the Commissioner has come to the correct conclusion that the company was providing services under category of 'airport services'. It is his submission that as per the agreement AAI authorised the assessee companies to extend the lounge service facilities to various airlines. These lounge services have been provided by the person authorised by the AAI under the agreement. It is his submission that the Board's Circular dated 17-9-2004 would subsequently apply, as in this case, if AAI was providing such lounge facility to the passengers and charging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are assessees were running an establishment in the name of lounge within premises of Indira Gandhi International Airport, Delhi. The assessees are charging the airlines the amount for the snacks/drinks/lounge facilities offered by them to passengers of these airlines. The assessees are situated in the premises of airport wherein Airport Authority of India has got powers to permit the functioning of such lounge. 7. That the assessees were raising invoices/bills on the airlines for the supply and sale of snacks/drinks which indicated discharge of applicable sales tax/VAT by them. 8. In the factual matrix as indicated above, it is to be seen whether the services rendered by the appellant would get covered under "Airport Services" as held by adjudicating authority, falling under section 65(105)(zzm) under taxable service, "Any person of airport authorized or any person authorized by it in any airport or civic enclave" or otherwise. 9. On perusal of agreement entered by the assessee with the AAI which is enclosed in the Appeal of M/s Oberoi Flight Services case, it is seen that the said agreement, discusses about parting of a specified area to assessees for establishing a lounge o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
