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TMI Blog2023 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is incidental or auxiliary on behalf of NHAI and the NHAI is not undertaking any business activity. In the appellant s own case PNC CONSTRUCTION CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [ 2012 (12) TMI 878 - CESTAT, NEW DELHI] , the Tribunal has held that the activities of the appellants in respect of toll fee collection cannot be held to be a service provided to NHAI falling under the category of BAS. The impugned order is not sustainable in law - Appeal allowed. - Service Tax Appeal No. 1164 Of 2011 - A/60181/2023 - Dated:- 4-7-2023 - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Krati Singh, Ms. Shreya Khunteta, Advocates for the Appellant Shri Harish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of Business Auxiliary Services . On these allegations, an enquiry was conducted against the appellant and statements of the authorized representative of the appellant were recorded. Thereafter, a show cause notice dated 23.05.2008 was issued alleging that toll operations undertaken by the appellant amounted to Business Auxiliary Services ( BAS ) under Section 65(19) of the Finance Act, 1994 ( Act ) and thus the consideration received against tolling operations was liable to service tax for the period 01.07.2003 to 31.03.2006. The appellant filed the detailed reply to the SCN submitting that the services rendered by the Appellant to NHAI are not liable to service tax under Business Auxiliary Service . 3. After following d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant are not covered by any of the activities specified in this clause. She also submitted that for qualifying under clause (iv) or (vii), the said service is required to be incidental or auxiliary to the services covered in other clauses. She also submitted that by collecting toll from the commuters, appellant was rendering service directly to NHAI and no service was being rendered to commuters on behalf of NHAI and therefore, the services undertaken by the appellant are not covered by BAS and not liable to pay tax. It is her further submission that the services will be covered by the definition of Business Auxiliary Service only if it is auxiliary to a business activity but NHAI is not undertaking any business activity by const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Chan.) M/s Sangam (India) Limited v Commissioner, Central Excise, Udaipur,2023 (2) TMI 831 - CESTAT New Delhi D.V Pawan Kumar, Proprietor Vaishnavi Distributors v C.C.,C.E. S. TCochin, 2022 (1) TMI 508 - CESTAT Bangalore A. Srinivasulu Co Vs. CCE, Visakhapatnam -II, 2018 (11) TMI 837 - CESTAT, Hyderabad Commissioner of Service Tax, Mumbai v. Ideal Road Builders Pvt. Ltd. Anr., 2017 (10) TMI 401 CESTAT Mumbai Souvenir Developers India Pvt. Ltd. Vs. CCE, C ST-I, 2022 (5) TMI 868- CESTAT Mumbai Ashoka Buildcon VS. CST, Nashik, 2017 (49) STR 404 (Tri.-Mumbai) Bans Sands TTC Vs. CCE, New Delhi, 2016 (9) TMI 374- CESTAT, New Delhi Intertoll ICS Toll Management Company P. Ltd. Vs. CST, Ahmedabad, 2018 (8) TMI 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intenance Contract dated 13.06.2003 with National Highway Authority of India. NHAI is authorised to impose and collect user fee for use of highways under National Highways Fee (Determination of Rates and Collection) Rules, 2008 read with Section 7 of National Highways Act, 1956 read with Section 16(2)(k) of National Highways Authority of India Act, 1988. NHAI invited bids from contractors for short term improvement and maintenance contracts for various sections of National Highways for specified period by issuing tenders for the same. In this regard, the appellant submitted its proposals in response to the tenders, which were accepted by NHAI, and the Appellant was given right to undertake various jobs like road maintenance, road property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Consultants (P.) Ltd. v. CCE [2011] 32 STT 269, the Tribunal held that toll tax and fee for use of bridge, by retaining the percentage of such collection, the activity cannot be held to be falling under BAS. In the case of Swarna Tollway (P.) Ltd. v. CC CE [2011] 32 STT 162, again the same status was reiterated. As regards limitation, we find that the Tribunal in the case of Brij Motors (P.) Ltd. v. CCE [Final Order No. ST/601/2011 (PB), dated 22-11-2011] has held that when the issue is interpreted by judicial forums in different ways, the extended period cannot be invoked in such a situation. 5. By applying the ratio of all the above decisions to the present case, we find that the activities of the appellants in respect of toll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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