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TMI Blog2019 (8) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... sputes before the Arbitral Tribunal. 2. Briefly stated, the relevant facts of the case are that on 20.07.2005, the appellant had entered into a License Agreement with the respondent No.1/AAI and later, on 19.06.2006, had entered into a License Agreement with the successor-in-interest of AAI, respondent No.2/DIAL on similar terms for removal or disposal of garbage from various designated points falling within the premises of the IGI Airport at New Delhi. An issue arose as to whether Service Tax was leviable on garbage disposal charges payable by the respondents to the appellant/petitioner. Pending adjudication of the said issue before the Service Tax Department, the respondents withheld the security deposits in the form of FDRs offered by the appellant/petitioner to the tune of Rs. 17,28,000/-, the subject matter of LPA 688/2017 and Rs. 28,51,200/-, the subject matter of LPA 686/2017. 3. The office of the Commissioner of Service Tax, New Delhi served notices to show cause on the respondents regarding non-payment of Service Tax on the service of garbage removal rendered by the appellant. While the said proceedings were still pending, the appellant filed a writ petition in the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Authority. 5. Coming to the specific disputes raised by each of the petitioners against the respondent/AAI in the aforesaid batch of petitions, the Division Bench held that in the event, the Appellate Authority holds that Service Tax is leviable, then it would be for the aggrieved parties to invoke the arbitration clause contained in the agreements governing them. Lastly, the Court separately dealt with each case where the respondent/AAI was holding a security deposit/bank guarantee or had recovered Service Tax from the petitioners therein and in the case of the appellant before us, the following direction were issued:- "The respondent AAI had awarded the contract to the petitioners for collection and disposal of garbage from IGI Airport, Delhi. The said contracts have already come to an end. Vide interim order in these petitions the respondent AAI was restrained from taken any coercive steps against the petitioners for collection/recovery of service tax. However, the respondent AAI is withholding the security deposit in the form of FDRs of the petitioners. The interest of the respondent AAI is thus fully safeguarded. The petitioners are however directed to keep the FDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts received as licence fee from licensees/concessionaries for operating/managing car parking facility, public admission and issue of season tickets/temporary passes. Accordingly, the Commissioner's order regarding levy of service tax on (a) (b), (c) & (e) is upheld and the other in respect of (d) is set aside and levy of service tax in respect of (d) above is confirmed. However for quantification of the service tax demand by the revenue from the above mentioned services, which would be recoverable only for the normal limitation period or for the period for which the assessments were provisional, the matter is remanded to the Commissioner. The extended period under proviso to Section 73 (1) is not invokable." 8. Learned counsel for the respondent No.1/AAI clarified that on the matter being remanded to the Commissioner, Service Tax on the aspect of quantification of service tax demanded by the Revenue Department, adjudication is still pending. 9. Mr. Atul Sharma, learned counsel for the respondent No.2/DIAL also supported the impugned order and sought to urge that the legal issue relating to leviability of Service Tax upon services rendered by the appellant/petitioner in the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought about an amendment in Clause 65(105)(zzm). However, this amendment was not retrospective and came into effect from 01.07.2010. The said clause as amended by Finance Act, 2010 reads as under:- "(105) "taxable service" means any service provided or to be provided- xxxx xxxx xxxx xxxx (zzm) 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;" 41. With the introduction of the proviso to Clause (zzm) of Section 65(105) of the Act, recourse to Section 65A was no longer available to determine whether any service rendered within the airport or civil enclave was more appropriately covered by any specific clause of Section 65(105) of the Act. Thus, after 01.07.2010, if any service which was otherwise taxable under the Act was rendered within the airport or civil enclave the same could be chargeable to service tax as 'airport services'." 11. We have examined the decision in the case of Airport Retail (P) Ltd. (supra) and find that the issue that was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll secured by the Award dated 30-03-2011 which was a Consent Award. Respondent No.5 had an interim order in its favour passed by the High Court and it was only because of the insistence on the part of appellant that Respondent No.5 was directed to furnish the bank guarantee. It is, therefore, but logical and consequential that the appellant must bear the costs for securing such bank guarantee. Confirming the view taken by the High Court we dismiss the present appeal. However, there will be no order as to costs." 13. Thus, the contention of the learned counsel for the appellant that the judgment in the case of Airport Retail Pvt. Ltd. (supra) has for all effects and purposes, settled the issue of leviability of Service Tax on services rendered by the appellant/petitioner to the respondents in both the appeals, in terms of the License Agreement, is not borne out. Nor is learned counsel correct in asserting that since the said decision has been affirmed by the Supreme Court, nothing further survives for adjudication by the Appellate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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