CENTRAL GST DELHI Vs. DELHI INTERNATIONAL AIRPORT LTD

JUDGEMENT

(1.) In all these appeals, orders of the Customs, Excise and Service Tax Appellate Tribunal [Final Order No, ST/A/50064/2019-CUIDBI dtd. 18/01/2019 [by the Principal Bench, CESTAT, New Delhi]; Final Order No. A/88830- -88832/16/STB dtd. 28/1/2016 [by the Western Zonal Bench, CESTAT, Mumbai]; and Final Order No. A/30739/2019 dtd. 16/9/2019 [by the CESTAT Regional Bench at Hyderabad]] (hereafter "CESTAT") are impugned by the service tax authorities (hereafter "the revenue"), who argue that user development fee levied and collected by the airport operation, maintenance and development entities (i.e., the Mumbai International Airport Pvt. Ltd., the Delhi International Airport Pvt. Ltd., and the Hyderabad International Airport Pvt. Ltd., (hereafter collectively called "the assessees") is subjected to service tax levy, under the provisions of the Finance Act, 1994 (hereafter "the Act").

(2.) All the assessees had entered into joint venture arrangements/agreements (hereafter "OMDA") with the Airports Authority of India (hereafter "AAI", a body corporate created by the Airports Authority of India Act, 1994 [hereafter "AAI Act"]. Under OMDA, the assesses agreed to undertake some activities enjoined upon the AAI, by the AAI Act. The assessees were authorised, by various notifications (dtd. 27/2/2009) issued by the Central Government under Sec. 22A of the AAI Act to collect a "development fee" @ Rs.100.00 for every departing domestic passenger and Rs.600.00 for every departing international passenger at the concerned airports for a period of 48 months.

(3.) The Commissioner of Service Tax, through various show cause notices demanded payment of tax on the development fee collected for various periods. These notices were adjudicated and confirmed; the CESTAT remanded the matter to the original authority requiring fresh adjudication after taking into consideration the decisions of this court in Consumer Online Foundation v. Union of India (2011) 5 SCC 360, Commissioner of Central Excise v. Cochin International Airport Ltd. 2010 (17) STR J 79 (S.C.), Acer India Ltd. and Orissa Cement Ltd. v. State of Orissa 1991 Supp (1) SCC 430 and various instructions issued by the Central Board of Excise and Customs (hereafter "CBEC"). The original authority disposed of all show cause notices by confirming demands, and also levying penalties under the Act. The adjudicating authority accorded the benefit of "cum-tax" valuation. These orders were challenged before the CESTAT, which, by the orders impugned, allowed the assessees' appeals, holding that the development fee collected was not liable to service tax levy.