TMI Blog2011 (5) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... When this appeal was called out, it was informed that there is a miscellaneous application filed which is numbered as ST/MA/891/09. On specific query from the Bench ld. Advocate submits that this miscellaneous application is filed by the Revenue for early hearing of the appeal No. ST/383/07. Since the appeal is listed today for final disposal, we find that the miscellaneous application is infructuous. In view of this, the miscellaneous application for early hearing of the appeal is dismissed as infructuous. 2. We take up the appeal for disposal. 3. This appeal is directed against Order-in-original No. 21/Commr/Noida/2007, dt. 31-3-2007. 4.1 The relevant facts that arise for consideration are that the appellant herein was given a sub-contract by M/s. Noida Toll Bridge Company Ltd. (hereinafter referred to as NTBCL) for specified functions relating to operations of Delhi-Noida toll bridge (hereinafter referred to as DND bridge). The appellant was permitted and authorized by NTBCL to collect toll from the persons who are using the bridge. NTBCL under an agreement with Noida authority under the Government of UP by an agreement dt. 12-11-1997 executed construction of two bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e category of Business Auxiliary Service for the period July, 2003 to December, 2005. Coming to such conclusion, a show-cause notice, dt. 31-3-2006 was issued to the appellant to show-cause as to why the demands raised in the show-cause notice be not confirmed with interest and consequent penalties imposed. Appellant contested the show-cause notice on various grounds. The adjudicating authority after granting an opportunity of personal hearing and after considering the submissions made by the appellant's representatives during the personal hearing came to the conclusion that the agreement entered by the appellant with NTBCL clearly indicates that the appellant is required to carry out various services which would fall under the category of BAS mainly "any customer care services provided on behalf of client" upto 10-9-2004 and post 10-9-2004, it would fall under the category of any customer care services provided on behalf of the client and or a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vii) of BAS. Coming to such conclusion, the adjudicating authority passed the following order:- ORDER (i) I confirm demand of service tax amounting to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -9-2004 also no services are provided on behalf of the client under clause (vi) or under clause (vii) of the BAS. It is his submission that the customer care services envisaged under the BAS is not applicable to the facts of this case as there is no third party involved with respect to the activity of operations and maintenance of the facility provided by the appellant to the NTBCL. It is his submission that the collection of toll fee from the vehicles / persons using the facility owned by the NTBCL cannot be considered as any service provided on behalf of the client. It is his submission that the expression 'customer care' is generally used to describe the activities performed to provide customer service that seeks to acquire new customers, provide superior customer satisfaction and build customer loyalty. It is his submission that the activity of collection of toll fee in cash cannot be considered as customer care service. It is his submission that the appellant carried out the activity of collection of toll fee and there was no provision of services on behalf of the client as provided under clauses (vi) and (vii) of definition of BAS post 10-9-2004. It is his submission that tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant can be summarized as 'Repairing and maintenance work' of DND bridge and operation of the said facility, providing services to customers in case of accident, advertising the toll fee and other facilities available at the bridge, sale of cards and also to maintain customer care facility for redressal of problems, take steps to minimize waiting time of customers, collection of toll fee and remitting the same to NTBCL. It is his submission that for the entire description of services that mentioned hereinabove, the appellant is paid a fixed amount of 11 per cent by the NTBCL. This amount is nothing but an amount received for the services rendered. It is his submission that the users of the DND bridge are the customers of NTBCL and these activities should have been carried out by the NTBCL being carried out by the appellant and hence, the services are rendered by the appellant on behalf of their client i.e. NTBCL. It is also his submission that services like arranging ambulance, tow vehicles, cleaning of the road, display of notification, selling of cards etc. are rendered for the users of DND bridge and these activities, of course, have link with user satisfaction. In performing suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or Explanation For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of, the client; (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to manufacture within the meaning of clause (f) of section 2 of the Central Excise Act, 1944(1 of 1944). Explanation For the removal of doubts, it is hereby declared that for the purposes of this clause, (a) "commission agent" means any person who ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomer. The definition of the BAS either prior to 10-9-2004 or post 10-9-2004 has to be considered from the point of view of whether the appellant has provided any customer care services on behalf of the client. First and foremost, it is to be noted that NTBCL is not a client of the appellant as the appellant is not promoting any customer care service of NTBCL. There is no visible activity done to please the user of the DND bridge to take care of their needs or something 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 Punj. Har. in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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