TMI Blog2014 (2) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... n more express and clearer terms - Following decision of M/s. Flemingo Duty Shops Pvt. Ltd v Union of India and Ors. [2013 (1) TMI 523 - DELHI HIGH COURT]. So far as the revenue’s argument that the issue cannot be gone into, because the assessee did not dispute the basic liability is concerned, this Court is of the opinion that a concession, if made on an erroneous understanding of the law; at any rate without the sanction of law to collect the amounts demanded, the revenue cannot rely upon the technicality of a concession of law. - Decided in favour of assessee. - CEAC 1/2014, C.M. APPL.639/2014, CEAC 2/2014 - - - Dated:- 17-2-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Sh. J. K. Mittal and Sh. Varun Gaba, Advocates. For the Respondents : Sh. Satish Kumar, Sr. Standing Counsel. JUDGMENT Mr. Justice S. Ravindra Bhat (open court) 1. The following question of law arises for consideration in these two appeals; they were formulated on 15th January, 2014: CEAC No. 1/2014: (1) Is the appellant liable to pay service tax for the car parking business and its management? (2) If so, with effect from what period? CEAC No. 2/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns and pay the tax liabilities, and, therefore, indulged in wilful suppression of material facts. Accordingly the Tribunal directed imposition of penalty. 5. The Tribunal s impugned order is questioned by the assessee on the ground that its tax liability is untenable. It was submitted that in view of the decision reported as M/s. Flemingo Duty Shops Pvt. Ltd v Union of India and Ors. 2012 (28) STR 449, parking cannot be considered as a taxable service, within Section 65 of the Finance Act, 1994. It was urged that the introduction of Section 65 (98a) read with Explanation 1 (c) to Section 65 (105) (zzzz) with effect from 01.06.2007 clarified doubts if any, that parking was not a taxable service at all. Counsel stressed that the expansive definition of immovable property spells out clear legislative intent that even parking activity would fall within the expression license under Section 65 (98a), yet the introduction of Section 65 (105) (zzzz), Explanation 1 (c) made it clear beyond doubt that parking was never seen to be a taxable service. 6. Arguing for the revenue, Shri Satish Kumar, relied on Section 65 (zzm) and stated that this provision, (in respect of airport ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994, introduced with effect from 01.06.2007, reads as follows: (zzzz) to any person, by any other person, by renting of immovable property or any other service in relation to such renting, for use in the course of or, for furtherance of business or commerce. Explanation 1. For the purposes of this sub-clause, immovable property includes- (i) building and part of a building, and the land appurtenant thereto; (ii) land incidental to the use of such building or part of a building; (iii) the common or shared areas and facilities relating thereto, and (iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, (v) vacant land, given on lease or license for construction of building or temporary structure at a later stage to be used for furtherance of business or commerce; but does not include (a) vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes; (b) vacant land, whether or not having facilities clearly incidental to the use of such vacant land, (c) land used for educational, sports, circus, entertainmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax is payable as per the said circular and accordingly the demand for service tax was quashed. 7. However the period in question in all those cases was prior to 1st June, 2007. 8. Thus, the benefit of the aforesaid order dated 17th July, 2012 would be available to the petitioner herein only for the period prior to 1st June, 2007 and following the said order the demand for service tax in the present case also, till the period prior to 1st June, 2007 is quashed. 12. The circular alluded to, No. 80/10/2004 dated 10.09.2004, to the extent it is relevant, stated that: 5. Airport services: Services provided in an airport or civil enclave, to any person by Airports Authority of India (AAI), a person authorized by it, or any other person having charge of management of an airport are taxable under this category. This includes variety of services provided to airlines, as well as for cargo and passenger handling such as security, transit facilities, landing charges, terminal navigation charges, parking and housing charges and route navigation facility charges. It would be on the gross amount chargeable by AAI or other such authorized person. Thus, charges such as royalty, lic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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