Commissioner of GST & Central Excise Belapur Versus Flemingo Duty Free Shop Pvt Ltd
Service Tax
2018 (11) TMI 842 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 26-10-2018
APPLICATION NOS: ST/ROM/85493, 85498 to 85504/2018 IN APPEAL NOS: ST/87234 to 87241/2016 – M/86105-86112/2018
Service Tax
Shri C J Mathew, Member (Technical) And Shri Ajay Sharma, Member (Judicial)
Shri MK Sarangi, Joint Commissioner (AR) for appellant applicant
Shri A R Krishnan, Chartered Accountant for respondent
ORDER
Per: C J Mathew
In these applications, made under section 35C(2) of Central Excise Act, 1944, Revenue contends that mistakes apparent on the record in final order no. A/89737-89744/17/STB dated 29th September 2017 disposing off appeal no. ST/87234/2016-MUM of theirs against the order of the first appellate authority in favour of M/s Flemingo Duty Free Shops P Ltd requires rectification. The dispute that was carried to the Tribunal pertains to eligibility for claim of
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f Customs Act, 1962, also sought rectification of that mistaken conclusion. Furthermore, according to him, the frontiers of taxable territory having been decided upon by the Hon'ble Supreme Court in Aban Loyd Chiles Offshore Ltd v. Union of India [2008 (227) ELT 24 (SC)], the Tribunal had erred in excluding 'duty free shops' in 'international airports' from 'taxable territory.' The applications also seeks that written submissions, filed on behalf of Revenue, but ignored by the Tribunal, be taken into consideration.
3. Before proceeding to record the submissions of Learned Chartered Accountant appearing for the respondent, we cannot but observe that section 35C(2) of central Excise Act, 1944 is not intended to be an instrument for altering a final decision handed down by the Tribunal. 'Mistake apparent in the record' is one that should be apparent and not any disagreement with consequences of the trajectory of reasoning adopted or the outcome of the
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, and that, in the face of such obdurate refusal to accept the logical reasoning adopted in the impugned order, the Tribunal was compelled to drive the point home in no uncertain terms even by indulgence in theoretical exercise. It was also pointed out that the submissions of Revenue during the hearing appeared to fall back on the settled law pertaining to refund of CENVAT credit extended to exporters of goods and services in rule 5 of CENVAT Credit Rules, 2004 with its own definition of 'exports' that was not germane to the dispute before the Tribunal.
5. We have perused the written submissions that are part of the record pertaining to disposal of the appeal and annexed to the present application. Undoubtedly, it is elaborate on the exports that are entitled to rebate, is replete with various decisions pertaining to disposition of warehoused goods in the domestic market and hypothesizes that the respondent may be unjustly enriched by grant of rebate. Doubtlessly impelled by t
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edless to say, it is a fallacy to equate narration or assertion with acceptable disposal of submissions.
6. All that remains for disposal is the allegation of taint of mistake in the foray of the final order of the Tribunal into 'taxable territory.' It would not be out of place to note here that an order need not necessarily conform, either in pattern or in content, to the wisdom, expectation and comprehension of the applicant-Commissioner. In deciding to approve, reject or modify an order .impugned before it, the Tribunal may, by the qualification of its constituents as well as its status in the judicial hierarchy, find it necessary to articulate the law as settled, interpret law that is yet to be settled, impart encyclopaedical information and offer pedagogical explanation with the larger purpose of persuading that law and logic go hand in hand to limit the authority vested in tax collectors. A discussion on the leviability of domestic tax outside the 'taxable territory&
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on; the equating of the two may well suit the applicant-Commissioner but inappropriate citing would not advance that cause.
8. As to whether that reasoning, if it did impact upon the confirmation of the orders of the two lower authorities, was correct in law or otherwise is for the Government to dispute before, and to be decided by, the appropriate appellate authority specified in the statute. To that end, Learned Chartered Accountant brought to our notice, almost as denouement, that Government of India, in Department of Revenue vide order no. 634/2018-CUS (WZ)/ASRA/MUMBAI dated 31st August 2018 through the Revision Authority in exercise of powers under section 129DD of Customs Act, 1962 while disposing of application of Shri Aarish Altaf Tinwala, has found that
'11. The Central Government however observes that the duty free shops though being physically located in Indian Territory, are specifically treated as being located outside the Customs Territory of India. … Goods sold by D
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hic territory of India, but for the purposes of levy of Customs Duties or any other taxes, the area of Duty Free shops shall be deemed to be the area beyond the customs frontiers of India….'
9. The decision of the Government of India supra is neither binding on us nor should be so construed as to deny the present application which seeks a limited relief within the scope of section 35C(2) of Central Excise Act, 1944. That opinion was also not available to persuade the Tribunal in composing the final order, now sought to be rectified, that was rendered. Even if it was, Learned Authorised Representative contends that an order pertaining to a passenger seeking exclusion from duties of customs in excess of 'free allowance' permissible to him has no bearing on the issue. Nevertheless, on the scope for application of the decision of the Hon'ble Supreme Court in re Hotel Ashoka, cited by Learned Authorised Representative, and the holistic perspective of the physical extent of t
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