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2013 (1) TMI 522 - CESTAT MUMBAIService tax on Business Auxiliary Service - assessee is engaged in construction of highways - SPV formed as a result of agreement between NHAI or State Authority and the concessionaire under the BOT arrangement - Held that:- As per Board Circular no. 152/3/2012-ST dated 22/02/2012 an agreement between the State authority and the concessionaire for construction of roads, the contractor is authorised to collect the toll charges from the users of the roads for the services rendered and the entire activity is done on Build-Own/Operate-Transfer basis, there is no service tax liability. Construction of roads has been specifically excluded from the scope of service tax levy both under "Commercial and Industrial Construction Service" and "Works Contract Service". Further repair and maintenance of roads have also been exempted from service tax retrospectively in this year's budget. Thus the intention of the Government is to keep out road construction activity from the purview of service tax. If that be so, how can service tax be levied on the very same activity under Business Auxiliary Service? - in favour of assessee.
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