TMI Blog2018 (12) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... as also the passenger service fees collected by the airlines on behalf of the airports and paid to them are not includable in the assessable value for the purpose of levy of service tax. Demand set aside - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 51334 of 2016 - Final Order No. 53375/2018 - Dated:- 28-11-2018 - Shri Justice Dilip Gupta, President And Shri C.L. Mahar, Member (Technical) Shri Tarun Jain, Advocate for the appellant. Shri G.R. Singh, Authorized Representative (DR) for the Respondent. ORDER Per. C.L. Mahar :- The facts in brief are that the appellant is an airline registered with the service tax department under category of transport of passengers by air se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in the order-in-original. 3. We have considered the rival submissions made both the sides and have also perused the record of appeal. We find that matter is no longer res-integra as several decisions on the same issue have already been passed by this Tribunal. Some of the decision passed by this Tribunal in recent past are as given below:- (i) Austrian Airlines vs. Commissioner of Service Tax 2017 (6) G.S.T.L. 344 (T); (ii) Lufthansa German Airlines vs. Commissioner of Service Tax 2016 (43) S.T.R. 636 (T) ; (iii) Continental Airlines INC vs. Commissioner of Service Tax 2016 (45) S.T.R. 449 (T) ; (iv) United Airlines vs. Commissioner of Service Tax 2017 (52) S.T.R. 492 (T) ; (v) American Airlines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appellants, are not to be included in the gross value, it is necessary to establish with documentary evidence the background of such fee or taxes, legal term of contractual obligation to collect and pay the amount on actual basis. These documentary evidences are not forthcoming in the present appeal. Further, we also note that reliance placed by the appellant on the decided cases can be of help in the present case only when the facts are established. We also note that any claim for exclusion on the basis of acting as pure agent can be made only if all conditions for such concept are fulfilled. Similarly, it is seen that the present inclusion is not on the basis of provisions of Rule 5(1) of Service Tax (Determination of Value) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6. Cases in which the commission, costs, etc., will be included or excluded. (2) Subject to the provisions contained in sub-Rule (1), the value of any taxable service, as the case may be, does not include (v) the taxes levied by any Government on any passenger travelling by air, if shown separately on the ticket, or the invoice for such ticket, issued to the passengers. We find that Airport Tax has been collected by the appellant as per Section 22 of Airport Authority of India Act, 1994 which empowers the authority to charge fees for the amenities given to the passengers and visitors at any Airport. Further, the PSF has been charged in terms of Aircraft Rules, 1937, wherein Rule 88 of the said Rules, authorise the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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