2011 (5) TMI 257 - AT - Service Tax

Demand - Business Auxiliary Service - Notification No. 13/2004 - The undisputed facts are that the appellant herein is authorized by an agreement by NTBCL to collect toll tax and user fee from the people who are using the DND bridge - It is the findings of the adjudicating authority that the services rendered by the appellant would fall under the category of BAS during the period prior to 10-9-2004 and post 10-9-2004 when the definition had undergone a change - The owner had given rights of collection of toll tax to the appellant and to retain a percentage of it and remit the balance - Held that that Notification No. 13/2004 specifically exempts the service tax liability on such services of collection of duties and taxes levied by Government - Appeal is allowed

Issues Involved:
1. Miscellaneous application for early hearing.
2. Classification of services provided by the appellant.
3. Tax liability under Business Auxiliary Service (BAS).
4. Applicability of Management, Maintenance, and Repair services.
5. Exemption under Notification No. 13/2004 for collection of duties and taxes.
6. Demand computation and limitation.

Detailed Analysis:

1. Miscellaneous Application for Early Hearing:
When the appeal was called out, it was informed that there was a miscellaneous application filed by the Revenue for early hearing of the appeal. Since the appeal was listed for final disposal, the application was dismissed as infructuous.

2. Classification of Services Provided by the Appellant:
The appellant was subcontracted by NTBCL to collect tolls and perform various functions related to the operation and maintenance of the DND bridge. The adjudicating authority concluded that the services rendered by the appellant fell under the category of Business Auxiliary Service (BAS) for the period from July 2003 to December 2005. The appellant contested this classification, arguing that their activities should be classified under 'Management, Maintenance, and Repair of immovable property' services, which became taxable only from 16-6-2005.

3. Tax Liability Under Business Auxiliary Service (BAS):
The adjudicating authority confirmed the demand of service tax amounting to Rs. 77,91,642 and imposed a penalty of Rs. 1,00,00,000 under sections 73(1) and 78 of the Finance Act, 1994, respectively. The appellant argued that the services provided did not fall under BAS, specifically contesting that:
- The transactions with NTBCL were not in the nature of BAS but rather 'Management, Maintenance, and Repair' of immovable property.
- The collection of toll fees could not be considered a customer care service.
- The services provided did not involve any customer care activities as defined under BAS.

4. Applicability of Management, Maintenance, and Repair Services:
The appellant contended that their activities should be classified under 'Management, Maintenance, and Repair of immovable property' services, which became taxable from 16-6-2005. The tribunal found merit in this argument, noting that a specific category covered under service tax from a specific date cannot be taxed under any other heading prior to that date, referencing the case of Dr. Lal Path Lab (P) Ltd.

5. Exemption Under Notification No. 13/2004 for Collection of Duties and Taxes:
Regarding the collection of toll by the appellant on behalf of M/s. Banas Sands, the tribunal noted that the toll fees collected were levied by the Municipal Corporation of Delhi. Notification No. 13/2004 exempts the service tax liability on such services of collection of duties and taxes levied by the government.

6. Demand Computation and Limitation:
The appellant also argued that the demand was computed without considering the amount as cum-tax amount and that the demand was barred by limitation. However, since the tribunal decided the appeal on merits, it did not record a finding on these issues, deeming them of academic nature.

Conclusion:
The tribunal set aside the impugned order, which confirmed the demands raised in the show-cause notice, and allowed the appeal with consequential relief, concluding that the services provided by the appellant were not taxable under BAS but rather under 'Management, Maintenance, and Repair of immovable property' services from 16-6-2005 and were exempt under Notification No. 13/2004 for the collection of duties and taxes.

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