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TMI Blog2024 (2) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... irport Director, AAI/respondent No.4 on behalf of respondent No.3/AAI was to raise monthly invoices towards the minimum guarantee/revenue share at the DFS which respondent No.4 duly did under the nomenclature of "Licence Fee". The petitioner was granted a special warehouse license by the jurisdictional Commissioner of Customs under 58-A of the Customs Act, 1962 (hereinafter referred to as "the Custom Act) for storage of duty free goods to be sold from DFS. It is the petitioner's case that no goods and/or service tax under The Central Goods and Service Tax Act. 2017 (hereinafter referred to as "CGST Act") or The Punjab Goods and Service Tax, 2017 (hereinafter referred to as "PGST Act") could be recovered from the petitioner. The petitioner, interalia, claimed for refund of Rs. 40,71,047.79 (Rupees Forty Lakh Seventy One Thousand Forty Seven and Seventy Nine Paise only) collected by respondents No.3 and 4 on wrongful application of CGST Act, the Integrated Goods and Service Tax Act, 2017 (hereinafter referred to as "the IGST Act") and PGST Act. The petitioner also prayed for a writ of Mandamus declaring that the aforesaid taxes could not be claimed by the authorities/respondents eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every month. Needless to state that if the aforementioned conditions are not fulfilled, the interim stay granted in the aforementioned terms shall stand automatically vacated." 7. By a subsequent order dated April 30, 2018 another Hon'ble co-ordinate Bench did not vary the interim order for the reason that the protection was only towards the petitioner's GST liability and the respondents were free to take any action on any other score including the termination of licence/arrangement. It was, inter-alia, recorded as under : "Counter affidavit filed on behalf of respondents No.3 and 4 is taken on record. Learned counsel appearing on behalf of respondents state that the interim order passed on 04.01.2018 is causing the respondents considerable prejudice. They further allege that the interim order leaves the respondents without any substantial protection in the event of the petitioner's losing the writ petition and not paying the amount. Their further grievance is that they did not get any opportunity of being heard before the drastic interim order was passed during the vacation and only a few days before the term reopened. They therefore oppose any application for adjournment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Authority. Learned counsel for respondents No.1, 5 and 6/Department submitted that the Central Board of Indirect Taxes and Customs has taken a decision on July 20, 2018 clarifying that GST is leviable on the licence fee of the Duty Free Shops situated on the Airports. He seeks time to file affidavit. After hearing learned counsel for the parties and keeping in view the aforesaid developments, we modify the earlier interim orders, while directing the petitioner to deposit the amount of GST with the Authority and the amount so deposited shall be retained by the Authority in a separate account so as to be appropriated in terms of the final decision in the writ petition. In case the petitioner is held liable to pay the amount, the same shall be deposited with the Department, whereas in case the transaction is not found to be taxable, the amount will be refunded by the Authority to the petitioner. Xxx" 9. Therefore, Bindal, J., was of the opinion that earlier interim orders should be modified and the petitioner should be directed to deposit the amount of GST with respondents No.3 and 4 which should be retained in a separate account and the same would be appropriated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upply of goods. Even though the petitioner was entitled to 'ITC' he would still be liable to pay tax on the Services availed. The petitioner had not been paying taxes to respondents No.3 and 4 due to interim orders passed by the Court but respondents No.3 and 4 were depositing the same with the department/ authorities being the service provider. Therefore, the Hon'ble Third Judge did not modify the order dated January 04, 2018, but clarified that the petitioner would be liable to pay interest on the withheld amounts of GST on Services in terms of interim order dated April 30, 2018. The relevant portion of said order dated July 16, 2021 is reproduced hereinafter : "xxx A Division Bench of this Court vide order dated 04.01.2018 granted ex-parte interim stay restraining the Respondents from collecting GST and further directed the Petitioner to furnish indemnity bond equivalent of the amount of the guarantee viz-a-viz the sales portion of every month and furnish 25% of GST as bank guarantee. As per Airport Authority, they have not collected GST on services from Petitioner on account of orders of this Court, however, have deposited with GST authorities. Deposit of tax without being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Union of India and others reported as 2019 (31) GSTL 398 and the decision of Learned Single Judge of the Kerala High Court in CIAL Duty Free and Retail Services Limited v. Union of India in CWP (C) No.12274 of 2020 decided on 22.09.2020. Referring to the aforesaid judgments and Article 286 of the Constitution of India, it reiterated the fact that duty free shops whether in arrival or departure terminals were outside the custom frontiers of indirect tax burden and any such levy would be unconstitutional. Therefore, if any such tax is levied, the same cannot be retained and the duty free shops would be entitled for refund of the same without raising any technical objections including that of limitation. 15. When the matter came up for hearing on December 15, 2023 it was vehemently argued by the learned counsel appearing on behalf of the petitioner that when goods were brought from foreign countries by any party and kept in bonded warehouses and transferred to duty free shops at international airports it could not be contended that the goods have crossed the custom frontiers. Reliance was placed on Hotel Ashoka v. Assistant Commissioner of Commercial Taxes reported as 2012 (278) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeep Patil's case:- i) Sales by Duty Free Shops to departing passengers; ii) Sales by Duty Free Shops to Arriving passengers and iii) Receipt of input services by Duty Free Shops. 21. The first two issues were decided in favour of DFS and third issue was not decided in favour of DFS. The writ petition dealing with first two issues was pertaining to WP No.1181 of 2018 succeeded and the impugned Show Cause Notices were quashed. However, as far as the third issue was concerned, as raised in WP No.1535 of 2019, it was held that no declaration was made since the petitioner was entitled to refund of ITC and no prejudice would be caused to them if DFS first paid GST on the Services provided to them by the Airport Authorities and then take the benefit of ITC on the entire amount and thereafter claim refund for the same. 22. It is also relevant to refer to paragraph 33 of CIAL's case (supra) for clarification of the issues. The same is reproduced herein below : "xxx 33. In W.P (C) No.6850 of 2018, I refrain myself from giving any declaration as sought qua accessibility of GST at Calicut International Airport but since this Court had granted the stay, which is operational during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clauses 10.5.2, 10.5.3 and 10.5.4. 10.5.2 The payment of Concession Fee shall commence from the Rent commencement Date. 10.5.3 Irrespective of the Authority raising an invoice, the Monthly Concession Fee (MCF) (along with any applicable service tax which may be payable) in respect of the Location shall be paid in advance on the 20th (twentieth) day of every Month during the Concession Term. 10.5.4 All payments towards Concession Fee, payable by the Concessionaire to the Authority, shall be by way of electronic fund transfer through Real Time Gross Settlement (RTGS) system to provide for real time inter-bank payment in favour of such account as may be prescribed by the Authority from time to time. 10.5.5 All payments towards Concession Fee, payable by the Concessionaire to the Authority, shall be in Indian Rupees." 24. In the light of observations made hereinabove and the interim orders dated January 04, 2018 and April 30, 2018 passed by Hon'ble Third Judge and the terms of the concession agreement we are of the considered opinion that the petitioner should first pay the respondents No.3 and 4 and then claim ITC and/or subsequent refund, if any, from respondents No.1, 5 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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