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TMI Blog2019 (10) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-ST, dated 29.6.2012? 3. The facts of the appeal in brief are as follows. The respondent is in the business of operating shops/outlets at the departure terminal of MIAL. These shops/outlets are taken on rent by the respondent from MIAL. The respondent procured duty/tax paid goods like tobacco products, travel accessories, books, magazine etc. from the domestic market and sold them at its outlets at the departure terminals at Mumbai International Airport to the outgoing international passengers. Out of them, two outlets of the respondent are situated at Security Hold Area (in short "SHA"). SHA is the area wherein passengers travelling abroad have to wait after clearing the immigration formalities but before boarding the international flight. The goods sold from there, cannot be brought back to the area situated before the clearing of immigration formalities. It is the case of the respondent-assessee that since there was no option but to take the goods out of India which were purchased from these two outlets, therefore the sales at these outlets in SHA have to be considered as "Export" and therefore the respondent claimed rebate by way of refund of Service Tax on rent paid to MIAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent would be an "exporter". The passenger is only the carrier and not the exporter as claimed by the revenue. Learned Chartered Accountant further submitted that the input service of renting of space has direct nexus with the sale of goods claimed as export. So far as the issue of unjust enrichment is concerned, learned Chartered Accountant would submit that as per clause (a) of proviso to Section 11B(2) of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994, the question of unjust enrichment does not arise in case of export transactions. Otherwise also he submits that no service tax or excise duty is charged or recovered in the export invoice. According to him, input service of rending of space has nexus with the claimed export goods. 6. Before deciding the issue involved in this Appeal, it is necessary to find out whether the sale of goods from these two outlets of the respondent to the passengers going abroad amount to 'Export"? While going through the case records, I find that the respondent-assessee has procured duty/tax paid goods from domestic market and sold them at its departure terminal outlets located in the SHA to the internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the event where the warehoused goods are not cleared for home consumption, they can be cleared for export, without payment of duty under Section 69 after filing shipping bill for export. 23. The Public Notice dated 22-7-2004 [Para 4.1], Standing Order dated 3-3-2008 (Para 3.3) and Public Notice dated 21- 12-2018 [Para 7.1] submitted by the respondent No. 3 further clarifies that the invoice issued to passenger at International departure terminal is deemed to be a "shipping bill" for the purpose of exports under Section 69 of the Customs Act and the Section 50 of the Customs Act provides that a 'shipping bill' has to be presented to the customs officer for export of goods in an aircraft. 24. It is clear that the goods sold to passengers at the International departure terminal DFS are not cleared for home consumption nor for removal to another warehouse or otherwise provided in the Customs Act, 1962 and hence the goods are cleared without payment of duty only for export under Section 69 of the Customs Act under an invoice which is also deemed to be a shipping bill. 25. Hence the sale/supply at the International departure terminals DFS would be export of goods under Customs L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by various precedents noted above, is not to extent the restriction under the COTPA to shops situated beyond India and not to apply the restrictions on passengers importing tobacco products, that is not trade or commerce. Even in GST regime, duty free shops at international airports are considered non-taxable area and their sales whether at arrival or departure lounge are considered as export." 28. The claim of the petitioner is that there is no 'export' of goods since the goods do not have a specific destination. It is however, observed that the facts of the four cases relied upon by the petitioner in the present petition are of a different nature as compared to the operation undertaken from the DFS. In all the four cases, the destination of the goods were very clear viz aircraft (in Burmah Sheel and Narang Hotel) and ship (in Coching Coal and Madras Marine). Thus, the destination was within the Indian territorial waters. In the present case of DFS, it is very clear that if a foreign destination of the foreign going passenger, the passenger also acts as a carrier and the goods are appropriated outside India. In view thereof, it is clear that the decisions relied upon by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med as carrier only and not the exporter of those goods. The exporter is the respondent. Therefore the issue of unjust enrichment will not arise here. 7. Earlier also between the same parties for earlier years, twice this issue came up before this Tribunal and in both the cases this Tribunal decided in favour of the assessee-respondent. In the matter of Commissioner, Service Tax-VII vs. Flamingo Duty Free Shop Pvt. Ltd.; 2-17-TIOL-3477-Cestat-Mum. this Tribunal while dismissing the Appeal filed by Revenue, upheld the order of the Commissioner (Appeals) that the respondent-assessee is eligible for rebate under notification No.41/2012-ST, dated 29.6.2012. In another decision of this Tribunal in respondent-assessee's own case, this Tribunal in the matter of Commissioner of Service Tax-VII vs. Flemingo Duty Free Shop Pvt. Ltd.; 2018(8) GSTL 181(Tri-Mum) again upheld the decision of the Commissioner (Appeal) therein and recorded that the respondent-assessee is eligible for rebate under the aforesaid notification dated 29.6.2012. In the said decision, the Tribunal also rejected the plea of unjust enrichment raised by the department. Although in the instant Appeal, one of the grounds ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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