TMI Blog2018 (4) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... duties and taxes levied by Government - appeal allowed - decided in favor of appellant. - Appeal No.ST/232/2009 -DB - Final Order No. A / 10729 /2018 - Dated:- 6-4-2018 - Dr. D. M. Misra, Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Shri Sarju S. Mehta (C.A) For the Respondent : Shri K. J. Kinariwala (A.R.) ORDER Per : Mr. D. Singh Briefly stated the facts of the case are that the appellant were collecting the Toll Tax on behalf of government of Gujarat. As per the agreement between the appellants and Government of Gujarat, the appellants were required to pay contract amount of ₹ 36 Crores in equal 104 installment of ₹ 34,63,200/- each during the period 06.02.2004 to 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs in the order Commissioner (Appeals). 4. Heard both the sides and perused the records. 5. We find that the issue of levy of service Tax on collection of Toll Tax and fee for use of highways and bridges is no longer res integra and has been settled in favour of the assessee in the judgment of this Tribunal in the case of Intertoll India Consultants Pvt. Limited (supra) wherein this Tribunal held as follow: 8. At the outset, we find that NTBCL was declared as owner of the DND 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omething which is done which induces to come again and again to the said DND bridge. It may be noted that the users of DND bridge may be paying the toll fees reluctantly as that is the only means to connect the two banks of the rivers. 9. We find a strong force in the contention raised by the ld. Advocate that the activity of the appellant would be covered under the Management, Maintenance and Repair of immovable property services . Such services are liable to be taxed from 16-6-2005. A category which specifically covered under the Service Tax liability from a specific date cannot be taxed under any other headings prior to that date is the law which has been settled by the Hon ble High Court of P H in the case of C.C.E. v. Lal Path La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f amount as fee to be known as toll. In view of this, we find that the appellant is not rendering any service which is incidental or auxiliary on behalf of NHAI. This view of ours is fortified by the decision of the Tribunal in CST v. Intertoll ICS CE Cons O M P. Ltd. (supra) wherein the bench has held as under : - 6. On merits of the matter, we find that National Highway Authority of India has availed services of the respondents. Fundamentally, the said National Highway Authority of India (NHAI) is not established by Revenue to be business concern nor a commercial concern not being engaged in any business activity. Therefore providing business auxiliary services by respondents to such NHAI is inconceivable. Therefore, for such reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the ratio of all the above decisions to the present case, we find 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. As such we set aside the impugned order and allow the appeal with consequential relief to the appellants. In the recent judgment in the case of Patel Infrastructure P. Ltd. v. CCE (supra) the issue as to whether the toll collection on highway would fall under the category of Business Auxiliary Service or otherwise was agitated and the bench took the following view : - 10. As regards the Service Tax liability under the Business Auxiliary Service on collection of toll, we find that the order of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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