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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938 WP(C).No. 30472 of 2015 (H) ---------------------------PETITIONER(S): ----------------------C. SADANANDAN, KOLARAKKAL HOUSE, ELATHUR P.O., CALICUT - 673 303. BY ADVS.SRI.C.P.MOHAMMED NIAS SMT.V.NAMITHA RESPONDENT(S): ------------------------1.

UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI - 110 004.

2.

THE COMMISSIONER OF SERVICE TAX, 17-B, IAEA HOUSE, M G MARG, NEW DELHI - 110 002.

3.

THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, DELHI SERVICE TAX DIVISION, 1, 37, 2ND FLOOR, NEHRU PLACE, NEW DELHI - 110 019.

4.

THE AIRPORT DIRECTOR , AIRPORTS AUTHORITY OF INDIA, CALICUT INTERNATIONAL AIRPORT, CALICUT - 673 647.

5.

AIRPORTS AUTHORITY OF INDIA, RAJIV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI - 110 003.

6.

THE COMMISSIONER OF CENTRAL EXCISE, CALICUT COMMISSIONERATE, CENTRAL REVENUE BUILDING, MANANCHIRA, CALICUT - 673 001.

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WP(C).No. 30472 of 2015 (H)

7.

THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, KOZHIKODE DIVISION, CENTRAL REVENUE BUILDING, MANANCHIRA, CALICUT - 673 001.

8.

THE SUPERINTENDENT OF CENTRAL EXCISE, RAMANATTUKARA RANGE, RAMANATTUKARA, KOZHIKODE - 673 633. R1 TO R3 & R6 TO R8 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC. ADV. SMT.PREETHA S. NAIR, SC. R4 & R5 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE. ADV. SRI.S.SUJIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

rs.

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WP(C).No. 30472 of 2015 (H) APPENDIX PETITIONER'S EXHIBITS:EXT.P-1:

TRUE COPY OF THE LICENSE AGREEMENT DATED 18.01.2002.

EXT.P-2:

TRUE COPY OF THE LETTER DATED 14.12.2009 SENT BY THE 8TH RESPONDENT TO THE 4TH RESPONDENT.

EXT.P-3:

TRUE COPY OF THE JUDGEMENT DATED 14.07.2010 IN WPC NO.16790 OF 2007.

EXT.P-4:

TRUE COPY OF THE JUDGEMENT IN CONTEMPT CASE (CIVIL) NO.742 OF 2011 DATED 23.05.2012.

EXT.P-5:

TRUE COPY OF THE LETTER NO.AAI/CL/B.12018/34/CAS/908 DATED 30.05.2012 ALONG WITH THE DOCUMENTS.

EXT.P-6:

TRUE COPY OF THE REPLY UNDER THE RTI DATED 20.09.2012 GIVEN BY THE 3RD RESPONDENT.

EXT.P-7:

TRUE COPY OF THE APPLICATION FOR REFUND DATED 21.09.2012.

EXT.P-8:

TRUE COPY OF THE PERFORMA - B REGARDING PENDING REFUND APPLICATIONS MAINTAINED IN THE WEBSITE OF THE CBEC.

EXT.P-9:

TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 13.11.2013.

EXT.P-10:

TRUE COPY OF THE LETTER DATED 27.12.2013 ALONG WITH THE DOCUMENTS.

EXT.P-11:

TRUE COPY OF THE SHOW CAUSE NOTICE C.NO.ST-20/DIVI/REFUND/AAI/228/12/3333 DATED 12.02.2014.

EXT.P-12:

TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE DATED 20.02.2014.

EXT.P-13:

TRUE COPY OF THE ARGUMENT NOTES FILED DURING THE PERSONAL HEARING.

EXT.P-14:

TRUE COPY OF THE ORDER-IN-ORIGINAL NO.24/ST/BH/REFUND/2014 DATED 04.03.2014.

RESPONDENT'S EXHIBITS:-

NIL. //TRUE COPY//

rs.

P.S. TO JUDGE

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A.M.SHAFFIQUE, J. -----------------------------------W.P.(C).No.30472 of 2015 ----------------------------------Dated this the 14th day of December, 2016 JUDGMENT This writ petition has been filed seeking the following reliefs : i.

quash

the

Ext.P14

order-in-original

passed

by

the

3rd

respondent. ii. issue a writ of mandamus directing the 3rd respondent to allow the return/refund of the amount of Rs.18,54,456/- to the petitioner.

2. The petitioner is a contractor who had undertaken the work for regulating entry of persons into the Airport Terminal of the Calicut Airport by collecting admission fee. The petitioner had undertaken the work for the period from 10.01.2002 to 31.03.2005, which was further extended to 17.01.2007. During the pendency of the

contract,

service

tax

was

introduced

with

effect

from

10.09.2004. Petitioner paid the service tax of ₹9,62,201/- as per the return filed for the period from 01.04.2005 to 17.01.2007. However, the 4th respondent namely the Airport Authority of India made remittance of service tax from the petitioner's security amount totaling an amount of ₹18,54,456/- as service tax for the period from 10.09.2004 to 17.01.2007. The assessment against the petitioner for payment of service tax had been completed as evident from Ext.P14. Paragraph 14.2 reads as under : “14.2 Based on the reasons given above, I find that it is not the case that the AAI had paid the Service Tax on behalf or representing the Applicant.

AAI discharged his liability

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W.P.(C).No.30472 of 2015 2

against License fee collected from contractor/Licensee and the applicant discharged his liability against income earned from the public admission fee. It is not the case that the taxation was done / paid on the same event twice. It is also not the case that the impugned Service Tax was collected from AAI without the authority of the law. Consequently, both had discharged their own service tax liability.”

3. The petitioner submits that having discharged the entire liability, the petitioner was entitled for refund of the amount remitted by Airport Authority of India to the 3rd respondent. Since no action had been taken in the matter, the petitioner had approached various authorities and ultimately his claim had been rejected as per Ext.P14. In Ext.P14 it is found that the service tax paid by the licensee can be availed as CENVAT credit by the licensee and the airport entry fee is directly collected by the licensee from visitors through issue of airport entry ticket. In the said circumstances, it was found that the question of refund does not arise. The Airport Authority of India having already collected the amount from the contractor and he had the facility to avail and utilise the service tax paid as input service credit under the provisions of CENVAT Credit Rules, 2004, the petitioner is not entitled for any refund. Hence, the petitioner has approached this Court challenging Ext.P14. 4. Counter affidavit has been filed by respondents 1 to 3 and 6 to 8 supporting the stand taken by them. Another counter affidavit

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W.P.(C).No.30472 of 2015 3

is filed by respondents 4 and 5 wherein also they supported the stand taken in Ext.P14. 5. The short question involved in the writ petition is whether the petitioner is entitled for refund of the aforesaid amount as claimed in the present writ petition. There is no dispute about the fact that the petitioner had satisfied the service tax liability in respect of the service done by him as evident from Ext.P14 order itself.

It is with reference to the very same service that the

petitioner had undertaken, the Airport Authority of India had adjusted his security deposit, recovered the amount from his bills and remitted the same to the 4th respondent. In other words, it is a double payment of service tax which cannot be disputed under the facts. There is no reason why such an amount should be retained by the 3rd respondent.

This issue is virtually covered by the

judgment of Apex Court in Sparkway Enterprises (M/s.) v. Commissioner of Central Excise and Customs

[2011 KHC

4047] wherein it is held at paragraph 15 as under : “Albeit, it is true that the appellant deposits a licence fees of Rs.2,66,797/- per month to AAI but it collects the required fees from the users of the facility and provide all facilities to such customers. S.65 Clause 105(zzm) of Finance Act, 1994 defines 'taxable service' to mean any person, by airports authority or any person authorised by it, in an airport or a civil enclave. It is thus crystal clear that the appellant being a person authorized by AAI to provide service in express terms and conditions, it

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W.P.(C).No.30472 of 2015 4

becomes liable to pay such tax as it was an authorized person to provide taxable service and collect the admission ticket charges on a contract basis.”

6.

Having regard to the aforesaid factual situation, the

learned Senior Counsel appearing on behalf of the 4th respondent submits that they will file necessary application before the 3rd respondent seeking refund of the amount. Therefore, I am of the view that such a course can be adopted and when the amount is received by the 4th respondent, the same can be refunded to the petitioner, so that there will not be any double taxation. In the result, this writ petition is disposed of as under : 1. Ext.P14 is set aside. The 4th respondent shall make a request to the 3rd respondent for refund of ₹18,54,456/within a period of 15 days from the date of receipt of a copy of this judgment. 2. The 3rd respondent shall refund the said amount as expeditiously as possible and not later than 15 days from the date of receipt of such request. 3. On receipt of the said amount by the 4th respondent, the petitioner shall approach the 4th respondent and settle the account within a further period of 15 days thereafter.

AV

Sd/A.M.SHAFFIQUE, JUDGE.