Page 121 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] SANDEEP PATIL v. UNION OF INDIA 799

of India and the transaction would be said to have taken place outside
India.
12. The aforesaid judgments are clearly applicable only in respect of sup-
plies to or from duty free shops situated after the passenger crosses the
immigration counter beyond the Customs Frontiers, at arrival or departure
hall of International Airport Terminals, where the transaction would be
said to have taken place outside India. The international travel of incoming
or outgoing passenger after immigration clearance would be beyond any
doubt. In such event, whether it is the sale/purchase/supplies of goods or
services, to or from such duty free shop, the same is said to be taken place
outside India . Hence, the same would be a non-taxable supply under Sec-
tion 2(78) of CGST/SGST and such duty free shops located at the interna-
tional airports would be in “non-taxable territory” as defined in Section
2(79) of CGST/SGST. As per Section 2(24) of IGST, the same meaning as
given in CGST/SGST applies for IGST as well.”
11. In the matter of DFS India Private Limited v. Commissioner of Customs
[Order dated 12th March 2010 in SLP (C) No. 2436 of 2010] the Apex Court took
cognizance of the fact that business undertaken at the departure duty free shop is
in the nature of export. In fact pursuant to this order, the stocks of tobacco prod-
ucts held by Respondent No. 2 at duty free shops came to be released by the De-
partment of Customs after being satisfied that the business undertaken from the
duty free shops at departure is export. In pursuance of this order of the Apex
Court, this High Court in the matter of DFS India Pvt. Ltd. and Another v. the
Commissioner of Customs [Writ Petition No. 2578 of 2009] also granted final relief
in favour of Respondent No. 2. If the legislative intent which is also supported by
various precedents noted above, is not to extent the restriction under the COTPA
to shops situated beyond India and not to apply the restrictions on passengers
importing tobacco products, that is not trade or commerce. Even in GST regime,
duty free shops at international airports are considered non taxable area and
their sales whether at arrival or departure lounge are considered as export.
12. So far as the Petitioner’s reliance on the decision of Vasu Clothing
Private Limited (supra) and further contention that the judgment of the Apex
Court in M/s. Ashoka (supra) and decision of this Court in A-1 Cuisines (supra) are
per incuriam is concerned, we find no merit. It is settled position of law that it is
not open for the High Court to declare a judgment passed by the Hon’ble Su-
preme Court of India as per incuriam. The Apex Court in South Central Railway
Employees Co-op. Credit Society Employees Union v. B. Yashodabai [(2015) 2 SCC 727]
has observed thus :
“16. We are of the view that it was not open to the High Court to hold that
the judgment delivered by this Court in C.A. No. 4343 of 1988 was per incu-
riam.
17. If the view taken by the High Court is accepted, in our opinion, there
would be total chaos in this country because in that case there would be no
finality to any order passed by this Court. When a higher Court has ren-
dered a particular decision the said decision must be followed by a subor-
dinate or lower Court unless it is distinguished or overruled or set aside.
The High Court had considered several provisions which, in its opinion,
had not been considered or argued before this Court when C.A. No. 4343 of
1988 was decided. If the litigants or lawyers are permitted to argue that
something what was correct, but was not argued earlier before the higher
Court and on that ground if the courts below are permitted to take a differ-
EXCISE LAW TIMES  15th June 2020  121