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TMI Blog2018 (11) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... Merely because a project is funded by toll tax, it cannot be said no service has been provided. Especially on the ground that during the phase when the toll tax is collected, the property owned by a corporate, promoted by Govt. of Gujarat and IL&FS - it is apparent that the toll collected is a compensation given to a private operator for providing the services of road used to the public on BOOT basis. Thus, the facility and usage of road against payment of toll is a service provided by the AMTRL. Every user is a customer of AMTRL and the appellants are providing services to the customers (the users) on behalf of AMTRL and thus the activity would also be covered under clause (iii) of the definition of BAS. Time limitation - Held that:- The appellants are providing the BAS and there is no doubt regarding the same. Merely, because they are collecting the said amount on behalf of the corporate entity backed by Government it does not constitute a bonafide belief for exemption. The definition of BAS is very clear. Thus, they cannot be given any benefit on account of limitation. Appeal dismissed - decided against appellant. - Appeal No.ST/109/2010-DB - Final Order No. A/125 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the facility is in the condition at all times required by the Concession Agreement including, without limitation, at the time of transfer to Government of Gujarat. VIII. Ensure that all the services provided hereunder comply with the Prudent Utility Practices. 2.1 Ld. Counsel argued that the definition of BAS at the material time did not cover the activity undertaken by the appellant in respect of Toll collection. He argued that to be taxable as BAS, the activity should be specifically covered under clause i to iv of Section 65 (19) of the Act. He argued that the activity is not covered by the activity (i) to (iii) of the said definition. He further argued that (iv) of the definition applies only to the activities incidentally or auxiliary to the activities defined under (i) to (iii) of the said definition. 2.2 He further argued that collection of toll is covered in Article 246 of the Constitution read with Schedule VII list -2, entry 59. In view of above, the toll is a tax collected by the Government, and therefore, the users of the road paying Toll cannot be called as customers either of the Government or of the AMTRL. He argued that since users do not qualify as cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrange and liaison with road transport facilities and local police for the traffic arrangements. He argued that the aforesaid service were rendered by L T on behalf of AMTRL to Customers of AMTRL. 3.1 He further pointed out that toll may be tax but the service provided by the appellant and the Revenue recovered as a consideration for service is not a tax. He argued that there is no exemption to services provided in relation to collection of tax at the material period. 4. We have gone through the rival submissions. The definition of BAS at the material time read as follows: Business Auxiliary Service means any service in relation to :- (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) Any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services, and includes service as a commission agent, but does not include any information technology service. Expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the State ( GoG ), in order to meet the growing demand for a developed, efficient, goods quality and expensive system of road transportation, has formulated a policy enabling private participation in the development, construction, reconstruction, repair, upgrading, management, operation and maintenance of roads within the State. In order to enable to due implementation of this policy, The Bombay Motor Vehicles Tax Act, 1958, which had earlier prohibited the levy of the tolls on motor vehicles utilizing roads within the territory of the State, has been amended, by the Bombay Motor Vehicles Tax (Gujarat Amendment) Act, 1994, to enable GoG to levy tolls on motor vehicles utilizing roads that have been either constructed, reconstructed, upgraded or repaired by private enterprises which have been specifically authorized by GoG to do so. The amended Act upgrading or repaid of the road to collect the toll in relation to such road on the terms and conditions and in such manner as may be prescribed. (B) Infrastructure Leasing Financial Services Limited ( IL FS ) is a company providing financial services one of the main objectives of which is to promote, establish, develop, finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat and IL FS specifically for this purpose. From the above terms of the contract, it is apparent that the construction of road, and its operation and management have been undertaken strictly on commercial basis and the toll tax collected is being used for recovery of investment and operating cost on Build Own Operate Transfer (BOOT) basis. In these circumstances merely because a project is funded by toll tax, it cannot be said no service has been provided. Especially on the ground that during the phase when the toll tax is collected, the property owned by a corporate, promoted by Govt. of Gujarat and IL FS. In view of above, it is apparent that the toll collected is a compensation given to a private operator for providing the services of road used to the public on BOOT basis. Thus, the facility and usage of road against payment of toll is a service provided by the AMTRL. 4.3 Perusal of the contract shows that the appellant are, inter alia, required to maximize the collection of toll. The appellants are also required to minimize the incidents and duration of any period during which the facility or any part thereof is accessible to use. The appellants are also required to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nced Law Lexicon read as under :- Customer is a person with whom a business house or a business man, has regular or repeated dealings; a purchaser of goods; one who frequents any place of sale for the sake of purchasing or ordering goods. A business customer is one who has the use and habit of resorting to the same person or place to do business; therefore, a stranger who goes into bank to get a cheque collected, is not a customer of the bank. It can be seen from the above definition, a person is considered as customer of a business house when he has repeated dealings with the business house. To our mind, by any stretch of imagination, individual using the DND bridge and pays toll to the authority cannot be considered as a customer. The definition of the BAS either prior to 10-9-2004 or post-10-9-2044 has to be considered from the point of view of whether the appellant has provided any customer care services on behalf of the client. First and foremost, it is to be noted that NTBCL is not a client of the appellant as the appellant is not promoting any customer care service of NTBCL. There is no visible activity done to please the user of the DND bridge to take care of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bouquet of services to the customers on behalf of the principal AMTRL and thus the appellants are also covered by the clause (iii) of the definition of BAS. 4.5 It is also seen that appellants are engaged in the following activities: Supply of toll tickets to users and collect toll from users; Maintain books and records about toll collected, traffic volumes, vehicles classification, exempted vehicles, etc.; Establish toll procedures, minimize time taken in collection of toll, ensure that exempted vehicles use only service roads and maintain toll plaza; Deposit each business day collection in to the toll account and ensure security of the amount; The toll shall be collected by single tickets using Toll Ticket Machines which shall store all the data for further electronic processing; Establish enforcement procedures to ensure that all the vehicles pass only after payment of toll tax and in case of failure shall compensate for loss; Shall augment the toll collection on the basis of traffic forecast; Ld. Counsel has argued that the issue of toll tickets is not the same as billing. We, however, do not agree with the said contention. Issue of toll ticket i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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