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TMI Blog2013 (10) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... hway Authority of India, State Government of Maharashtra and also Government of India. These contracts were on Build, Operate and Transfer (BOT) basis. The consideration for the services rendered under these contracts was recovered by collection of toll charges for a fixed tenure and appropriating the same towards the cost incurred. The case of the Revenue is that collection of toll charges under the contracts comes within the purview of 'Business Auxiliary Services'. Notices were issued and demands for service tax along with interest were confirmed apart from imposing equivalent amount of penalty. Hence the appellants are before us. 3. The learned counsel for the appellants submits that they have not rendered any 'Business Auxiliary Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pair Service' under Section 65(105)(zzg) the activity has also been exempted from levy of service tax and the same has been given retrospective effect from the date of inception of the levy. Thus, it is very clear that the construction and repair of roads have been specifically excluded from the scope of levy of service tax by the Government. The appellants have been providing services of construction of roads. To finance/compensate the cost of construction, the contractors have been allowed to collect toll charges and the toll charges have been collected on their own behalf and for themselves. If that be so, they cannot be said to have rendered any 'Business Auxiliary Service' for someone else. 5.2 Further the Central Board of Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Hindi version to follow." 6. Thus, we are prima facie of the view that the appellants have made out a strong case in their favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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