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TMI Blog2013 (8) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 22.2.2012 makes it absolutely clear that an SPV formed as a result of agreement between NHAI or State Authority and the concessionaire under the BOT arrangement, the Concessionaire cannot be considered as an agent of the NHAI. Waiver of pre deposit – prima facie strong case in the favour of the assessee – thus court allowed from the waiver of the pre deposit – stay granted – appeal decided in the favour of the assessee. - ST/726/12 - S/18/13/CSTB/C-I - Dated:- 23-11-2012 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri Bharat Raichandani, Adv. For the Respondent : Shri P S Sodhi, Commissioner (AR) Per: P R Chandrasekharan: The appeal and stay application are directed against the Order-in-Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for undertaking this activity and towards compensation for the cost incurred, they were permitted to collect Toll charges from the users of the highway. Thus, the Toll charges were the means of financing the widening and improvement of road. They have undertaken collection of Toll charges for themselves and not on behalf of NHAI. Therefore, the said activity cannot be classified as Business Auxiliary Services . 3.1 The learned Counsel also submitted that vide the Circular No.152/3/2012-ST dated 22.2.2012, the CBE C has examined the issue and clarified that where Special Purpose Vehicle is formed under BOT arrangement and they are allowed to collect Toll charges on their own account, the same activity is not subjected to Service Tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for construction of the road. 3. However, if the SPV engages an independent entity to collect toll from users on its behalf and a part of toll collection is retained by that independent entity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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