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TMI Blog2013 (1) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... on of roads has been specifically excluded from the scope of service tax levy both under "Commercial and Industrial Construction Service" and "Works Contract Service". Further repair and maintenance of roads have also been exempted from service tax retrospectively in this year's budget. Thus the intention of the Government is to keep out road construction activity from the purview of service tax. If that be so, how can service tax be levied on the very same activity under Business Auxiliary Service? - in favour of assessee. - ST/770/12 - Final Order No. A/4/2013-WZB/C-I(CSTB) - Dated:- 14-12-2012 - P.R. Chandrasekharan And Anil Choudhary, JJ. Appellant Rep by: Shri Bharat Raichandani, Adv. Respondent Rep by: Shri Rakesh Goy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 22/02/2012 the Board has clarified the tax liability in respect of construction of road where the finance is done through a Special Purpose Vehicle (SPV) and toll is collected by the SPV on their own accounts towards the cost of constructing the roads. An SPV formed as a result of agreement between NHAI or State Authority and the concessionaire under the BOT agreement, cannot be considered as an agent of the NHAI. Renting, leasing or licensing of vacant land by the NHAI or State Authority to an SPV for construction of road does not come under the purview of the service tax. In view of the clarification issued by the Board, the order is not sustainable. 4. The Ld. AR appearing for the Revenue reiterates the findings of the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity as commission or is compensated in any other manner, service tax liability arises on such commission or charges, under the Business Auxiliary Service [section 65(105) (zzb) read with section 65(19) of the Finance Act, 1994]. 4. Further, an SPV formed as a result of agreement between NHAI or State Authority and the concessionaire under the BOT arrangement, cannot be considered as an agent of the NHAI. Renting, leasing or licensing of vacant land by the NHAI or State Authority to an SPV for construction of road and such construction do not attract service tax. 5. This Circular may be communicated to the field formations and service tax assessees, through Public Notice/ Trade Notice." 5.3 From the above circular it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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