2009 (9) TMI 534 - AT - Service Tax

Stay-Dispensation- that the appellant had constructed on BOT basis. This National Highway is constructed as per the tripartite assignment agreement dated 29-6-2001 between National Highways Authority and CIDBI and the appellant. Held that- Toll tax collected is exempt from payment of Service Tax. Thus the Service Tax demanded on the amount of toll charges collected by the appellant does not have a strong basis. Accordingly application for the waiver of the condition of pre-deposit is allowed and recovery thereof stayed till the disposal of the appeal.

Summary

Issues:
1. Stay petition against waiver of pre-deposit of specified amounts.
2. Confirmation of Service Tax on business auxiliary services provided.
3. Interpretation of agreements between National Highways, CIDBI, and the appellant.
4. Authorization to collect toll charges and exemption from Service Tax.
5. Prima facie case for waiver of pre-deposit and stay of recovery.

Analysis:
1. The judgment pertains to a stay petition challenging the waiver of pre-deposit of specific amounts, including Service Tax, education cess, interest, and penalties. The Tribunal considered the appellant's request for waiver against the confirmed amounts and decided in favor of the appellant, allowing the application and staying the recovery until the appeal's disposal.

2. The issue of the confirmation of Service Tax on business auxiliary services provided by the appellant was discussed. The appellant was alleged to have provided services on behalf of CIDB Inventures SDN BHD (CIDBI). The Tribunal examined the agreements between National Highways, CIDBI, and the appellant to determine the basis for the Service Tax demand. It was argued that toll charges collected on highways constructed under a BOT agreement were the subject of the Service Tax demand.

3. The Tribunal reviewed the agreements between the parties and highlighted the authorization granted by the Ministry of Road Transport and Highways for collecting toll tax. The appellant's role in constructing the National Highway under a tripartite assignment agreement was crucial in establishing the exemption from Service Tax on toll charges. The Ministry's amendment notification further clarified the appellant's authorization to collect toll tax, leading to the conclusion that the Service Tax demand lacked a strong basis.

4. The judgment emphasized that the toll tax collected by the appellant was exempt from Service Tax, as per the notifications and agreements in place. The Tribunal found that the appellant had presented a prima facie case for the waiver of pre-deposit, considering the legal provisions and authorizations related to toll tax collection. Consequently, the Tribunal allowed the application for waiver and stayed the recovery of the confirmed amounts pending the appeal's final resolution.

5. In conclusion, the Tribunal granted the appellant's request for the waiver of pre-deposit based on the lack of a strong basis for the Service Tax demand on toll charges. The decision highlighted the importance of the agreements, notifications, and authorizations governing toll tax collection in determining the applicability of Service Tax. The judgment ensured a fair consideration of the legal aspects involved and provided relief to the appellant pending the appeal's outcome.