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TMI Blog2022 (1) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... uxiliary Service. The Civil Appeal admitted by the Hon ble Apex Court against the above order of the Mumbai Bench was subsequently withdrawn by the Revenue. The assertions of the learned advocate to be acceptable that the issue is no more res integra and covered in its favour since same was not distinguished nor any order to the contrary are furnished by the Revenue - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 21617 of 2016 - Final Order No. 20011 / 2022 - Dated:- 7-1-2022 - SHRI P. ANJANI KUMAR, TECHNICAL MEMBER AND SHRI P. DINESHA, JUDICIAL MEMBER Shri. K. Parameswaran, Advocate for the Appellant Shri. P. Rama Holla, Superintendent (AR) for the Respondent ORDER Brief facts releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 76, 77 and 78 ibid. 2. The appellant filed a detailed reply to the above show-cause notice seriously rebutting the Revenue s proposal of demanding service tax, but however, vide impugned Order-in-Original No. COC-EXCUS-000-COM-25/2016-17 dated 28/06/2016, the Commissioner of Central Excise, Customs and Service Tax, Cochin confirmed the demand after classifying the activity under BAS, along with interest as proposed and penalties under Section 77(1)(a), 77(2) and 78 ibid. Aggrieved by the above, the appellant has preferred this appeal. 3. Heard Shri K. Parameswaran, learned Advocate for the appellant and Shri P. Rama Holla, learned DR for the Revenue. 4. Learned advocate would submit at the outset that the issue of el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue, after considering agreement as well as various decisions/orders, has held as under: 4.2 We also find that the respondent s case is not even concerned with charging commission from NHAI or MSRDC unlike the judgments cited above. They stand on better footing than the cases cited by the Counsel for the respondents as in the present case they had secured the right to collect the toll from NHAI/MSRDC in a bid for lump-sum amount. This amount is to be paid to NHAI/MSRDC irrespective of any quantum of toll collection. The toll collection is not being done on commission basis or in lieu of any remuneration. All the proceeds of the toll collection belong to the respondents with no interference or right of NHAI/MSRDC. The income so genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at source under Section 194H which is towards collection of tax on commission income. Thus, the difference between the toll collection and the bid amount paid by the respondents to M/s. NHAI/MSRDC in no way can be termed as consideration for any service. The reliance placed by the Revenue upon Board Circular No. 152/3/2012-S.T., dated 22-2- 2012 is not correct for the reason that the respondents has not collected such toll charges on commission or charges on behalf of NHAI/MSRDC. The toll collection is their own income and is not parted with NHAI/MSRDC as they are concerned only with the bid amount finalized in auction and therefore cannot be termed as activity of Business Auxiliary Service. In view of above findings and judgments cited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is already decided in case of Mateshwari Indrani Contractors Pvt. Ltd. - Final Order No. 52187/2018 dated 6/6/2018=2018-TIOL-2608-CESAT-DEL. All the issues, which are being contested in these appeals have been decided in favour of the appellants by this Tribunal. However, we find in these cases the period involved is also post 01/06/2012. We are in agreement with the contentions made by the ld. Advocate i.e. show cause notice does not whispers above the category under which the services are to be qualified. Post 01/06/2012. On the other hand, these are also statutory duties levied by the Government and accordingly, amended by the Notification No. 25/2012-ST dated 30/06/2012. We do not find any reason to differ with the contentions made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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