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M/s Continental Airlines Inc. Versus Commissioner of Service Tax, New Delhi

2015 (7) TMI 1079 - CESTAT NEW DELHI

Demand 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 .....

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e 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 .....

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lful 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 ibi .....

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mresh Jain, DR ORDER Per R. K. Singh Assessee is in appeal against order-in-original number 58-60//GB/2012 dated 20/02/2012 in terms of which demands along with interest and penalties were confirmed under online information and database access or retrieval service under reverse charge mechanism on the service provided by Computer Reservation System (CRS)/Global Distribution System (GDS). 2. Revenue has also filed appeals against the same order-in-original for dropping the demand relating to the .....

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ad not paid service tax on-(i) the payments made to CRS/GDS service providers under reverse charge mechanism in terms of provisions of Section 66 A ibid, (ii) the airport taxes collected, (iii) charges for pre-ponement and postponement of journey dates, (iv) transport of import cargo. Vide impugned adjudication order the adjudicating authority confirmed the demand under reverse mechanism on the payments made in respect of CRS/GDS service providers but dropped the demand relating to amount collec .....

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eived by the appellant assessee and the payment made by its headquarters in the USA was on its behalf and that the judgement in the case of British Airways is not applicable to the present case. 6. Revenue with regard to its appeal stated that airport taxes were collected as part of the gross amount received for the service rendered, and therefore, the same are includible in the assessable value. It also stated that the preponement and postponement charges are nothing but amounts charged for pro .....

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s. We find that in the case of British Airways (supra) it has been clearly held (as a majority view) that British Airways India (the appellant in that case) has to be treated as a separate person vis-a-vis its parent company based abroad and in view of the admitted position that the contracts with CRS/GDS service providers were not with British Airways India but with British Airways UK, the present appellant (i.e., British Airways India) cannot be held to be recipient of the service so as to mak .....

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t sustainable in the wake of CESTAT judgment in the case of British Airways (Supra). 8. As regards, the airport taxes, we find that CESTAT in the following 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: 1. Turkish Airlines Vs. CST, Delhi [2013 (30) STR 367 (Tri-Del)] 2. Srilankan Airlines Ltd. Vs. CST, Chennai [2011 (21) STR 65 .....

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changing the dates of travel. Thus, the appellant's contention that these are mere penalties and hence not includible in the assessable value is not tenable. 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 clea .....

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