TMI Blog2019 (8) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... complete agreement with the view expressed by the learned Single Judge that the dispute raised in the writ petitions cannot be a subject matter of judicial review under Article 226 of the Constitution of India. It is for the appellant to invoke the arbitration clause, if she so desires - Moreover, despite an opportunity afforded to the appellant/petitioner to participate in the appeal filed by the respondent No.1/AAI before the CESTAT against the order passed by the Commissioner, Service Tax in terms of the judgment dated 12.04.2012, for reasons best known to her, she has elected to stay away from the said proceedings that culminated in the order dated 02.01.2015, whereunder a particular aspect relating to quantification of Service Tax demanded by the Revenue Department has been remanded to the Commissioner, Service Tax for consideration. Writ proceedings are not an appropriate forum to decide as to whether Service Tax would be leviable on garbage collection charges and if the answer is in the affirmative, who would be liable to pay Service Tax more so, when the appellant/petitioner has not even impleaded the Service Tax Authorities as a party in the writ petitions. Impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lia challenging the applicability of Service Tax in respect of the agreement entered into with the respondent/AAI. Besides the appellant/petitioner herein, several other persons who had entered into agreements with the respondent/AAI, also filed writ petitions challenging the application of Clause (zzm) inserted in Section 65 (105) of the Finance Act, 1994 w.e.f. 1.4.2004 that had extended the definition of taxable services to be provided to any person, by airports authority or by any other person, in any airport or a civil enclave: . PROVIDED that the provisions of Section 65A shall not apply to any service when the same is rendered wholly within the airport or civil enclave. 4. As the Service Tax authorities were of the view that Clause (zzm) would be attracted to the agreements entered into by the appellant herein and other similarly placed parties with the respondent/AAI, notices were issued to the AAI to pay the Service Tax. By a detailed common judgment dated 12.4.2012 in a batch of petitions, the Division Bench observed that the Commissioner, Service Tax had completed the assessment in the case of AAI and declared that it was liable to pay Service Tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the event of the service tax being ultimately levied, the dispute as to who is to bear the same shall be resolved by arbitration. The parties shall be entitled to seek interim measures in the said arbitration proceedings. The petitioners to within one month also file affidavits undertaking to this court to pay the service tax amount if ultimately found due to the respondent AAI. 6. The contention of Mr. Mittal, learned counsel for the appellant/petitioner is that since no Service Tax was ultimately imposed by the Service Tax Department on the revenue generated by the respondent No.1/AAI and the respondent No.2/DIAL, the FDRs offered by the appellant as security, are liable to be returned/refunded forthwith. 7. On the other hand, Mr. Kathuria, learned counsel for the respondent No.1/AAI submitted that the dispute as to whether Service Tax is attracted on the services rendered by the appellant, has already been adjudicated upon and decided by the Central Excise and Service Tax Appellate Tribunal (CESTAT) in proceedings where the appellant had been permitted to be impleaded in terms of the judgment dated 12.4.2012 in W.P.(C) 15096/2006, referred to hereinabove a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Service Tax upon services rendered by the appellant/petitioner in the instant case, has yet to be adjudicated upon and the matter is still at the show cause stage. He submitted that since the Statute contemplates that the liability to pay the Service Tax, if leviable, rests with the party who renders the said services, which in the present case would be the appellant, the respondent No.2/DIAL has no option but to retain the security deposited by her in the form of FDRs pending adjudication. In addition to the above plea, it was submitted that there is an arbitration clause in the License Agreement executed between the parties and if the appellant is disputing the liability to pay Service Tax, then the same can only be adjudicated upon by the Arbitral Tribunal, on invocation of the said clause. In other words, a petition under Article 226 of the Constitution of India would not lie in such circumstances. 10. In his rejoinder arguments, learned counsel for the appellant not only reiterated the submissions made by him before the learned Single Judge, he also cited a decision in the case of Airport Retail Pvt. Ltd. Vs. Union of India reported as 2014 (35) S.T.R. 659 to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s'. 11. We have examined the decision in the case of Airport Retail (P) Ltd. (supra) and find that the issue that was raised therein, was entirely different. In the said case, the Division Bench was required to examine as to whether Section 65 (105)(zzm) of the Finance Act, 1994 as amended by the Finance Act, 2010 w.e.f. 01.07.2010, whereby, Service Tax was imposed on renting of immoveable property by DIAL to a third party like the petitioner therein, could be treated as a transaction that would fall within the scope of rendering of service . Taking note of the fact situation of the said case, the Division Bench held that even if the transaction between the petitioner therein and DIAL is considered as a simple case of letting out of an immoveable property, it would not fall within the category of taxable service of airport services under Clause (zzm) of Section 65 (105), prior to the date of the amendment, i.e. 1.7.2010, since the petitioner therein had closed its operations with effect from 30.6.2010. 12. It is relevant to mention here that aggrieved by the aforesaid judgment dated 30.7.2014, DIAL being the successor-in-interest of AAI, had preferred an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Authority under the Act and consequently, the security offered by the appellant in the form of FDRs ought to be released by the respondents forthwith. We do not find any infirmity in the view expressed in the impugned order that once there is a dispute as to whether the appellant is liable to pay Service Tax on the revenue generated from garbage collection, then her remedy lies before the Arbitral Tribunal, since there is an arbitration clause governing the parties. We are in complete agreement with the view expressed by the learned Single Judge that the dispute raised in the writ petitions cannot be a subject matter of judicial review under Article 226 of the Constitution of India. It is for the appellant to invoke the arbitration clause, if she so desires. Moreover, despite an opportunity afforded to the appellant/petitioner to participate in the appeal filed by the respondent No.1/AAI before the CESTAT against the order passed by the Commissioner, Service Tax in terms of the judgment dated 12.04.2012, for reasons best known to her, she has elected to stay away from the said proceedings that culminated in the order dated 02.01.2015, whereunder a particular aspect relating to q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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