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TMI Blog2015 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... Mum - Final Order No. A/1923/2015-WZB/STB - Dated:- 1-7-2015 - M V Ravindran, Member (J) And P S Pruthi, Member (T),JJ. For the Appellant : Shri A R Krishnan, CA For the Respondent : Shri B S Meena, Addl. Comm. (AR) ORDER Per: M V Ravindran: This appeal is directed against Order-in-Original No. 46/BR-42/ST/TH-1/2009 dated 19.11.2009. 2. The relevant facts that arise for consideration are the officers of DGCEI collected intelligence that the appellant were providing various services to National Highway Authorities of India (NHAI) in relation to collection of toll which was chargeable to service tax under Business Auxiliary Service. After investigation, recording of the statement of General Manager, authorities came to a conclusion that the 3 toll plaza which were managed and operated by the appellant were in respect of the operation expenses borne by them and they were collecting toll on behalf of NHAI and were getting payments from NHAI and they were not registered with the service tax authorities. Coming to such a conclusion, a show-cause notice dated 10.04.2007 was issued for demand of service tax liability for the period 01.07.2003 to 31.01.2007 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In the entire contract, the money flows from the appellant to NHAI. After successfully bidding the right for toll collection. Hence appellant cannot be considered as agent/representative for levying service tax. 3.2. It is further alternative argument if toll collection is considered as a service, benefit of Notification 13/04-ST dated 10.09.2004 would be available as toll is a specie of tax and is enforced contribution imposed by Central Government and remitted to Pay and Accounts officer (National Highway), Ministry of Surface Transport, New Delhi. 4. It is his further submission that as per clause (iv) of the erstwhile definition of Business Auxiliary Service the services rendered by the appellant are not extendable to any of the three clauses nor do they relate to marketing or selling function of any business of NHAI. Same would be the situation for the inclusion of clause (iv) after 10.09.2004 when the definition of Business Auxiliary Service under went a change. 5. Ld. Departmental Representative, on the other hand, would draw our attention to the very same agreement and submit that the said agreement clearly indicates that appellant is appointed as a firm for col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service on behalf of the client; or (iii) any customer care service provided on behalf of the client; or (iv) any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relations services and includes services as a commission agent, but does not include any information technology services. Business Auxiliary Service means any service in relation to, (w.e.f. 10.09.2004) (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or (v) production or processing of goods for, or on behalf of, the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... function of developing, maintaining of the highway. On perusal of the agreement with the appellant and NHAI, we find the said agreement does not indicate anywhere that the appellant is appointed as an agent/representative and the said agreement talks of collection of amounts as fee to be known as toll . In view of this, we find that the appellant is not rendering any service which is incidental or auxiliary on behalf of NHAI. This view of ours is fortified by the decision of the Tribunal in CST vs. Intertoll ICS CE Cons O M P. Ltd. (supra) wherein the bench has held as under:- 6. On merits of the matter, we find that National Highway Authority of India has availed services of the respondents. Fundamentally, the said National Highway Authority of India (NHAI) is not established by Revenue to be business concern nor a commercial concern not being engaged in any business activity. Therefore providing business auxiliary services by respondents to such NHAI is inconceivable. Therefore, for such reason, we dismiss the appeal of the Revenue without approving reasons given by the adjudicating authority. We also find in the case of PNC Construction Co. Ltd. vs. CCE (supra), an id ..... X X X X Extracts X X X X X X X X Extracts X X X X
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