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TMI Blog2013 (1) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.12.2000 with a Malaysian Company i.e. CIDBI Inventures SDN BHD ( for short "CIDBI"). This agreement was concluded after NHAI invited proposals from CIDBI for the above purposes and after the detailed project proposal submitted by CIDBI was accepted by NHAI. 6. Clause 5 of this agreement authorized CIDBI to transfer all rights, benefits, interests, duties and obligations under this Agreement to a "Special Purpose Vehicle" (SPV) to be constituted by CIDBI either solely or jointly with other parties for the purpose of implementing the project and the concession. The said clause further provided that in such an event, NHAI shall enter into a Concession Agreement with the SPV. 7. On 27.3.2001, a Concession Agreement was entered into between NHAI and CIDBI whereunder NHAI granted to CIDBI ( Concessionaire ), the Concession for a period of 30 years, including the exclusive right, licence and authority to implement the project and the concession in respect of the project highways. 8. Subsequently the CIDBI had, jointly with other parties, promoted and incorporated the respondent company on 11.5.2001 to act as the Special Purpose Vehicle (SPV) to undertake the design, engineer, fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest on tax and cess under section 75 of the Act and proposed penalties under Section 76 and 77 of the said Act. The appellant i.e. the Commissioner passed a common order dated 17.10.2008 in relation to both the show cause notices confirming the demand of service tax and cess against the respondent under Section 73 (1) of the Act and also held that the respondent is liable to pay interest thereon under Section 76 apart from penalty of Rs. 2,000/- under Section 77 and Rs. 17,00,00,000/- under Section 78 in respect of the first show-cause notice. 12. Aggrieved thereby, the respondent filed Appeal No.ST/33/09 and the Revenue filed Appeal No.ST/63/09 before the CESTAT, South Zonal Bench, Bangalore. 13. In respect of toll collections of the respondent on NH.5 for the period from 1.1.2008 to 30.11.2008, a show cause notice dated 16.3.2009 was issued for recovery of service tax of Rs. 6,70,61,975 with education cess and interest thereon and for imposition of penalties. The Commissioner after considering the explanation of the respondent by order dated 12.8.2009 confirmed the demand of service tax and education cess, directed the respondent to pay interest under Section 75 and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.3.2001; that there was no assignment of the right to collect toll by CIDBI to the respondent under the assignment agreement dated 29.6.2001; that the Notification dated 28.4.2004 issued by the Government permitted only CIDBI to collect the fees on the project highways as a concessionaire; and that the said Notification was amended by SO.No.1212 (E) dated 13.5.2009 substituting the words: "And whereas, the Authority has entered into an agreement with CIDB Inventures SDN BHD, Suite 15-3, 15 Floor, Wisma UOA II, No.21, Jalan Pinang 50450 Kuala Lumpur, Malaysia; "and whereas, subsequently executed an assignment agreement with CIDBI Inventures SDNBHD and M/s.Swarna Tollway Pvt. Ltd. (hereinafter referred to as the "Concessionaire") for the development of the said section of the said National High Ways", for the words "And whereas, the Authority has entered into an agreement with CIDB Inventures SDN BHD, Suite 15-3, 15 Floor, Wisma UOA II, No.21, Jalan Pinang 50450 Kuala Lumpur, Malaysia (hereinafter referred to as the "Concessionaire") " 19. According to the Revenue, the substitution has no retrospective operation. He therefore, contended that the respondent was providing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take in the Notification dated 28.4.2004, the Government of India authorized CIDBI to collect toll fee on the above project highways overlooking the fact that by that date, there was an assignment by CIDBI to the respondent and the respondent was actually collecting the toll fee. Later, on realizing this mistake, the later Notification dated 13.5.2009 was issued by the Central Government amending the preamble to the earlier notification dated 28.4.2004 as mentioned above so as to reflect the fact that the respondent was the concessionaire. By virtue of the said amendment, which can be said to be clarificatory, the correct factual position was declared and the collection of toll fee by the respondent and not CIDBI was ratified. 23. In our view, neither the earlier Notification dated 28.4.2004 nor the subsequent Notification dated 13.5.2009 are of any assistance in deciding the issue as to whether the toll collection was being done by CIDBI or by the respondent. This issue can only be decided by interpreting the language of the assignment agreement dated 29.6.2001. 24. Under Clause 2.1 of the assignment agreement dt.29.6.2001, CIDBI assigned and transferred the concession agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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