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2013 (1) TMI 166 - HC - Service TaxService tax with education cess on the toll charges collected at Venkatachalam Toll Plaza, Budanam Toll Plaza and Sullurpet Toll Plaza on NH.5 - Held that - CIDBI was awarded the work of widening the existing two lane highway to four lane highway on both sections of NH.5 and NH.9 mentioned above including construction, strengthening and widening thereof and the operation, maintenance of the same through a concession on BOT basis. Thereafter, a memorandum of agreement dated 19.12.2000 was entered into between NHAI and CIDBI and clause 5 of the said agreement permitted CIDBI to transfer all rights, benefits, interests, duties and obligations of CIDBI under the said agreement to a SPV to be constituted by CIDBI. A concessionaire agreement dated 27.3.2001 was subsequently entered into appointing CIDBI as the Concessionaire inter alia to collect toll also apart from designing, engineering, financing, procurement, construction, completion, operation and maintenance. Later, CIDBI had promoted and incorporated the respondent on 11.5.2001 as a SPV and assigned all its rights to the respondent under the assignment agreement dated 29-06-2001 to which NHAI is also a party. Under Clause 2.1 of the assignment agreement dt.29.6.2001, CIDBI assigned and transferred the concession agreement in favour of the respondent and the respondent unconditionally agreed to accept the said assignment/transfer of the concession agreement and undertook to execute/perform the concession agreement as if the said agreement was entered into between NHAI and the respondent. Clause 2.2 of the agreement states that NHAI agreed to the aforesaid assignment of the concession agreement by CIDBI in favour of the respondent and with the execution of the assignment agreement, the respondent shall be deemed to be the concessionaire under the concession agreement. Clause 2.3 of the agreement provided that with the execution of the assignment agreement, NHAI and CIDBI released each other from their respective rights, duties and obligations under the concession agreement. Clause 2.4 of the agreement states that this assignment agreement shall be annexed to the concession agreement dated 27.3.2001 and shall form an integral part of the concession agreement. A conjoint reading of the above clauses of the assignment agreement dated 29.6.2001 lead to the irrefutable conclusion that the respondent alone was the concessionaire entitled to collect toll as all the rights of CIDBI under the concession agreement dated 27.3.2001 including toll collection, were assigned to the respondent with the consent of NHAI. Revenue pointed out from clause G of the preamble to the assignment agreement dated 29.6.2001 that the word toll collection was not mentioned therein and therefore CIDBI continued to be the agency for collection of toll and not the respondent. Thus the preamble to the agreement or clause G would not be relevant and one has to see the operative clauses of the agreement dated 29.6.2001 i.e. clauses 1.1, 2.1, 2.2, 2.3 and 2.4, thus rejection of contention of the counsel for the Revenue.
Issues Involved:
1. Whether the respondent was the concessionaire entitled to collect toll fees. 2. Whether the toll collection by the respondent falls under "Business Auxiliary Service" as per Section 65(19) of the Finance Act, 1994. 3. Whether the notifications and amendments issued by the Central Government have retrospective effect. 4. Whether the respondent is liable to pay service tax, education cess, interest, and penalties. Issue-wise Detailed Analysis: 1. Whether the respondent was the concessionaire entitled to collect toll fees: The Central Government authorized the National Highways Authority of India (NHAI) to improve and upgrade sections of NH.5 and NH.9 through a "Build, Operate and Transfer" (BOT) basis. NHAI entered into an agreement with CIDBI on 19.12.2000, which allowed CIDBI to transfer all rights to a Special Purpose Vehicle (SPV). Subsequently, CIDBI, along with other parties, incorporated the respondent as the SPV on 11.5.2001. An assignment agreement dated 29.6.2001 was executed, transferring all rights and obligations under the concession agreement to the respondent. The court concluded that the respondent was the concessionaire entitled to collect toll fees, as all rights of CIDBI, including toll collection, were assigned to the respondent with NHAI's consent. 2. Whether the toll collection by the respondent falls under "Business Auxiliary Service" as per Section 65(19) of the Finance Act, 1994: The Department of Customs, Central Excise, and Service Tax issued show-cause notices demanding service tax on toll charges collected by the respondent, categorizing it under "Business Auxiliary Service." The Tribunal held that the respondent was collecting toll charges as the concessionaire and not as an agent of CIDBI. The court upheld this view, stating that the respondent was the concessionaire entitled to collect toll fees, thus not falling under "Business Auxiliary Service." 3. Whether the notifications and amendments issued by the Central Government have retrospective effect: A notification dated 28.4.2004 authorized CIDBI to collect toll fees. However, an amendment on 13.5.2009 clarified that the respondent was the concessionaire. The court determined that the amendment was clarificatory, reflecting the correct factual position that the respondent was the concessionaire since the assignment agreement dated 29.6.2001. This amendment was deemed to have retrospective effect, ratifying the respondent's toll collection. 4. Whether the respondent is liable to pay service tax, education cess, interest, and penalties: The Commissioner confirmed the demand for service tax, education cess, interest, and penalties against the respondent. However, the Tribunal set aside the orders of assessment, and the court upheld the Tribunal's decision. The court concluded that the respondent was the concessionaire entitled to collect toll fees and not liable for service tax under "Business Auxiliary Service." Consequently, the demands for service tax, education cess, interest, and penalties were dismissed. Conclusion: The court upheld the Tribunal's final order, dismissing the appeals filed by the Revenue. The respondent was confirmed as the concessionaire entitled to collect toll fees, and the toll collection did not fall under "Business Auxiliary Service." The notifications and amendments were deemed to have retrospective effect, and the respondent was not liable for service tax, education cess, interest, or penalties.
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