EMIRATES Vs. COMMISSIONER OF CENTRAL EXCISE, DELHI-I

JUDGEMENT

(1.) AMENDMENT of the relief sought in stay application No. ST/4587/2012 is the relief sought. By inadvertence, instead of seeking waiver of pre -deposit, the stay application seeks quashing of the order impugned in appeal. The amendment is sought to modify the stay application for seeking waiver of pre -deposit. In the circumstances, the miscellaneous application is ordered and the relief prayed for in the stay application stands amended. Service Tax of Rs. 47,04,128/ - plus interest and penalties including penalty amount equivalent to the Service Tax liability, under Section 78 of the Act was determined by the adjudication order, dated 17 -9 -2010. The adjudication order stood confirmed by the Order -in -Appeal, dated 9 -8 -2012. The liability is assessed in respect of the taxable service specified under Section 65(105)(zzn) of the Act. This provision specifies the taxable service as being any service provided or to be provided to any person, by an aircraft operator, in relation to transport of goods by aircraft. The liability is assessed on excess baggage charges recovered by the petitioner/appellant from the overseas travelers. The petitioner contends (a contention disfavored by the primary and appellate authorities) that baggage of passengers does not constitute goods, to fall within taxable entry. Alternatively, it was contended the export of baggage was exempted by Notification No. , dated 15 -7 -2005. The petitioner contends that since under the Customs Act, goods transported outside the territory of India constitute export, baggage of the passengers must be considered as goods since they are carried beyond India to overseas destinations and would constitute export goods falling within the realm of the Notification No.

(2.) IN the facts and circumstances of the case, we find a prima facie case in favour of the assessee. In the circumstances, we consider appropriate to direct the petitioner/appellant to deposit Rs. 24 lakhs (Rupees twenty four lakhs) along with the proportionate interest as a condition for waiver of pre -deposit of the balance adjudicated liability including penalties. The deposit of Rs. 24 lakhs plus proportionate interest shall be made to the credit of Revenue within four weeks from today. In default of the deposit within the stipulated time or in reporting compliance by 30 -9 -2013, the appeal shall stand dismissed for failure of pre -deposit. Ld. counsel for the petitioner is present in the Court and has noted this order which constitutes sufficient notice to the appellant of its obligations under this order. The stay application is disposed of accordingly.