TMI Blog2024 (1) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... tly allowed setting aside the demand of service tax on PSF and Airport Taxes. However, the matter is remanded to the Commissioner for verification whether the appellant had collected any admin charges during the relevant period and if so, the taxability. - SHRI DILIP GUPTA, PRESIDENT AND SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Nagesh Kumar, Advocate, Shri Amrish Dhawan, Advocate for the appellant. Shri Harsh Vardhan, Authorized Representative (DR) for the Department ORDER M/s. Virgin Atlantic Airways Ltd. [the appellant] filed this appeal to assail the order-in-original dated 24.3.2015 [impugned order] passed by the Commissioner of Service Tax, New Delhi whereby the proposals made in three show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l SCNs dated 20.04.2012 and 28.09.2012. It was alleged in these SCNs that the appellant was paying service tax on the Basic Fare, Fuel Surcharge and Insurance Surcharge but was not paying service tax on the PSF, Admin fee and Airport Taxes collected from the passengers and the same was proposed to be recovered. 4. The appellant submitted its replies to the SCNs on 23.10.2012 and 11.8.2014 contending that no service tax is leviable on the PSF, Admin fee and Airport Taxes. However, the demands were confirmed as proposed in the SCNs and hence this appeal. 5. Of the three amounts in dispute, it has been held by this Tribunal in several decisions that service tax cannot be levied on the Passenger Service Fee (PSF) and Airport Taxes. In Aus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt charges collected by the appellant are to be included in the service provided by them under the category of Transportation of Passengers by Air services or not. Learned authorized representative has heavily relied on the decision in the case of Air Canada versus CST, New Delhi (supra). We find that in the case of Air Canada, the period involved is May, 2006 to September, 2007 and the appellant has failed to give documentary evidence that they have shown these expenses separately or not. The same is extracted below: 5. Learned counsel for the appellant submitted a part of Passenger Air Tariff General Rules, 2010. It is submitted that this is the mandate for the members of IATA. The said compilation indicates country-wise taxes and fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in Continental Airlines Inc. [2015-TIOL-1481-CESTAT-DEL] and a few other cases held that PSF and airport taxes are not includible in the taxable value of airlines. It was recorded that these charges were collected by the airlines on behalf of airports and were paid to them and, therefore, are not includible in the assessable value for the purpose of levy of service tax. Unless, these facts are established the ratio cannot be universally adopted for all airlines. As, already noted, categorical evidences are not forthcoming in the present appeal, in spite of specific query by the Bench. 6. Accordingly, we find that the appeal cannot be sustained due to failure to establish the facts. Accordingly, the same is dismissed. 7. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided by the appellant, as the impugned period is, post 27.02.2010 and the said issue has been examined by this Tribunal in the appellant's own case wherein this Tribunal has made it clear that these charges are not to be included in the assessable value of the services provided by the appellant relying on the decision in the case of Continental Airlines versus CST, New Delhi (supra). Moreover, as per the exemption Notification No. 12/2010, dated 12-2-2010, statutory taxes charged by any Government on Air passengers would be excluded from the taxable value for the purpose of levy of tax and therefore, the service tax is not payable by the appellant. 8. In view of the above analysis, we hold that Passenger Service Fee (PSF) and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was collecting Admin fee which is in the nature of pre-ponement, postponement or cancellation charges is not correct. 8. We are of the opinion that this is a fact to be verified by the Commissioner and if no Admin fee is collected by the appellant at all, the question of levying service tax on it does not arise. 9. In view of the above, we set aside the impugned order insofar as the demand of service tax on PSF and Airport Taxes is concerned and remand the matter to the Commissioner to examine if the appellant had collected any admin fee at all and if so, the purpose for which it is collected and if service tax can be levied as per the law prevalent during the period and the precedent decisions. Consequently, we set aside the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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