None v. AIRPORT AUTHOURITY OFINDIA

2. Issues and question arose whether service tax was chargeable on garbage disposal charges payable to the appellants. Consequently, security deposits furnished by the appellants in the form of FDRs were withheld.

3. The appellants had earlier filed WP(C) Nos.15095/2006 and 15096/2006, which were disposed ofvide order dated 12.4.2012, the operative portion ofwhich reads as under: "The respondent AAl had awarded the contract to the petitionersfor collection and disposal ofgarbagefrom IGI Airport, Delhi. The said contracts have already come to an end. Vide interim order in these petitions the respondent AAl was restrainedfrom taken any coercive steps against the petitioners for collection/recovery of service tax. However, the respondent AAl is withholding the security deposit in theform ofFDRs ofthe petitioners. The interest -4 of the respondent AAI is thus fully safeguarded. The petitioners are however directed to keep the FDRs renewed from time to time. In the event of the service tax being ultimately levied, the dispute as to who is to bear the same shall be resolved by arbitration. Thepartiesshall be entitled to seek interim measures in the said arbitration proceedings. The petitioners to within one month alsofile affidavits undertaking to this court to pay the service tax amountifultimatelyfound due to the respondentAAI."

4. Contention of the learned counsels for the appellants is that service tax was not applicable on garbage disposal charges. However,the Service Tax Department was not impleaded as a party before the learned single Judge. They are not a party before us in the present appeal.

5. Learned counsel appearing for AAI states that they have already paid service tax on garbage disposal charges, as demanded. He also submits that the dispute in this regard stands adjudicated and decided by the Central Excise and Service Tax Appellate Tribunal (CESTAT),where the appellants were also impleaded as party.

6. Learned counsel appearing for the appellants states that, as per the pronouncement by the CESTAT,service tax was not payable on garbage disposal charges. Thus, two conflicting and divergent statements are made. We hesitate and would not venture into and axL decide which statement is correct m-a^$9^«^fetit!i^and that too,in the absence ofthe Service Tax Department.

7. Learned counsel appearing for DIAL in LPA No.686/2017 a \ states that a show cause notice has been issued by the Service Tax Departmenton levy ofservice tax on garbage disposal charges and the proceedings are pending.

8. In view of the aforesaid factual position, the learned single Judge had rightly observed that in a writ petition, it would not be CxsulLcI 7^ ' appropriate to decide the question whether service tax can be imposed on the garbage collection charges and ifimposable who was liable to pay service tax.

9. There is an arbitration clause between the appellants and the DIAL/AAI. Impugned order leaves it open to the appellants to avail ofother remedies as per law.

10. Learned counsel for the appellants states that they would write to the AAI and the DIAL to ascertain the present position regarding service tax dues and demand.Ifdemand cannot be raised being barred by limitation or the issue has been decided,DIAL/AAI should inform and return the FDRs. It is open to the appellants to write letters to DIAL/AAI and we hope and trustthatDIAL and the AAI will reply to the appellants and inform them ofthe correct factual position ofthe pending proceedings and disposal.

11. Recording the aforesaid, the appeals are dismissed with no order as to costs. Allthe pending applications are disposed of. --[i ■- SANJIV KHANNA, J CHANDEk SHEKHAR,J AUGUST 02, 2018