9911796707
TMI Blog2019 (12) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5 February,2019, 27th February, 2019, 01 April, 2019, 01 May, 2019, 20 August, 2019, 27 September, 2019, 28 November, 2019, 18 November, 2019 and no one appeared on behalf of the appellant. On 06 December, 2019, the matter was listed again and no one appeared for the appellant again. Therefore, the matter is taken up for disposal without further delay. 2. Learned Authorised Representative points out that the issue involved in the instant case is that if the services rendered by the appellant in respect of collection of toll fee in respect of National Highway Authority of India are liable to tax under the head of Business Auxiliary Services. He pointed out that the said issue is squarely covered by the decision of this Tribunal in the case of Larson Toubro Ltd. 2019 (21) GSTL 428 (Ahmd.) and also the decision of this Tribunal in the case of Rishi Enterprises 2019 (25) GSTL 579 (Tri Del.). 3. We have considered rival contentions made by Learned AR and also the grounds of appeal. We find that in the instant case is squarely covered by the decision of this Tribunal in the case of Larson Toubro Ltd. (supra). In the aforesaid decision following has been observed: 4 . We have gone thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llection of such toll. While the toll may be a tax, the compensation received by the appellant is not a tax. The compensation received by the appellant is for the service provided by the appellant to AMTRL in respect of collection of toll and other assorted services. There is no exemption to any service provided in respect of collection of tax, and therefore, first argument of the Ld. Counsel cannot be sustained. 4.2 In this regard the agreement between AMTRL and the appellant is relevant. The following clauses of the agreement are relevant in this regard : (A) The State of Gujarat (the State ) is one of the highly industrialized states in India. The Government 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Facility in accordance with the terms of the Concession Agreement. (K) ... (L) After due evaluation of the various bids submitted in response to the RFP, the Owner has awarded the tender for the design and construction of the Project to Larsen Toubro Limited the Contractor. From the above it is apparent that IL FS has agreed to take up development, upgrading, repair, operation and maintenance of roads on a commercial basis . The construction and operation and maintenance has been sub-contracted to the appellant by IL FS through a corporate entity incorporated in the state and promoted by Govt. of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D bridge by the Noida Authority under the Govt. of U.P. The owner had given rights of collection of toll tax to the appellant and to retain a percentage of it and remit the balance. It can be seen that the appellant herein is collecting an amount as toll from the users of the DND bridge. To our mind, the users of toll fee paid bridge cannot be considered as customers. The persons who are using the DND bridge cannot be called as customers of either the appellant or NTBCL for a simple reason, because the expression customer as defined in Advanced 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d toll vehicles at all times. The appellants were also required to arrange and liaison with road transport facilities and local police for the traffic arrangements. In these circumstances, we find that 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. From the above it is apparent that the appellants are providing a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection and control of Toll revenue at each plaza by manual computerized method. ii. Transfer of Toll revenue to M/s AVEXCL account on a daily basis. iii. Insurance of Toll revenue as per the terms agreed upon with M/s AVEXCL. iv. Safe keeping, handling, transporting, reconciliation and banking of toll revenue. v. Control of traffic for the Toll plaza area. vi. Control of and accounting for all the tolls collected. vii. Toll reporting and administration. viii. Toll related personnel management. ix. Security of toll plaza. 4.5 It appears from the statements of Shri Suresh Ambalal Mistry and form of Agreement dated 31.05.2003 (alongwith the Bid document) discussed in above para that M/s KCL was providing incidental and auxiliary support Service to M/s ACEXCL in collection of toll fee. They were issuing bills in the form of toll fee tickets to the users. M/s KCL were also collecting toll fee on behalf of their client M/s AVEXCL from the users of said road, and were depositing the same in Toll account and also making arrangement for security of the said amount, M/s KCL were maintaining the accounts of the toll fee collected by them from the users and were remitting the same t M/s AVEXC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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