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2023 (2) TMI 733 - HC - Service TaxService or not - agreement between the Petitioner and the NHAI for collection of toll charges - activity performed by the Petitioner under the agreement with NHAI - status of the Petitioner qua NHAI - whether the Petitioner would be an agency on behalf of NHAI? - HELD THAT:- The Tribunal, in Petitioner's own case COMMISSIONER OF SERVICE TAX, MUMBAI VERSUS M/S. IDEAL ROAD BUILDERS PVT. LTD., M/S. MEP TOLL ROAD PVT. LTD. [2017 (10) TMI 401 - CESTAT MUMBAI], had rendered a finding that the Petitioner cannot be considered as an agent of the NHAI. In the impugned decision, the Respondent has not dealt with the implications of this finding of the Tribunal. The Respondent- Commissioner had posed this question to himself in the order; however, thereafter, we do not find any declaration as to what is the implication of the earlier decision of the Tribunal and as to whether the finding of the status of the Petitioner would lose its meaning after the introduction of the new regime. The Commissioner has only referred to different periods under which the demands have been made, however, without any discussion about whether it would rule out the earlier finding of the Tribunal. According to us, this specific finding on the status of the Petitioner given in the Petitioner's own case by the Tribunal could not have been overlooked. By stating so, we should not be deemed to have meant that the Commissioner was bound by the decision of the Tribunal or otherwise. The Commissioner could conclude that the declaration was not applicable even after the new regime or that after the new regime, despite the such declaration, the Petitioner would be liable, but the same could not have been ignored. We agree with the learned counsel for the Petitioner that there is a fundamental flaw in the approach adopted by the Respondent, which needs to be corrected. Impugned order set aside - the proceeding before the Respondent-Commissioner is restored to decide the same - petition disposed off.
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