9911796707
TMI Blog2013 (2) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... demand is a levy on an amount of Rs. 125 crores taken as taxable value of the said service. This amount of Rs. 125 crores was the consideration paid to the appellant by their wholly owned subsidiary M/s. Godavari Toll Bridge Pvt. Ltd. as per a resolution passed on 25-3-2006 by the Board of Directors of the appellant. As per the said resolution, the appellant assigned to the said subsidiary the entire right to collect toll in respect of Yenam-Yedurulanka in Bridge in East Godavari District in the State of Andhra Pradesh. The said bridge was constructed by the appellant under a 'Build-Operate-Transfer' (BOT) Agreement with the Government of Andhra Pradesh, dated 6-10-1999. Under that agreement, the total investment was Rs. 110 crores and subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the head 'business auxiliary service' on the amount retained by the toll collector. Support has been claimed from Swarna Tollway (Pvt.) Ltd. v. CCE, Guntur [2011 (24) S.T.R. 738 (Tri.-Bang.)] also. It is further pointed out that the impugned demand is on a one-day transaction of 31-3-2006 and the show-cause notice was issued as late as on 30-6-2008 invoking the extended period of limitation it is submitted that there was no valid reason for invoking the extended period of limitation in this case. 2. The learned Special Consultant for the respondent refers to the facts of the case in general and particularly to the terms of the BOT agreement between the appellant and the Andhra Pradesh Government and the assignment dated 25-3-2006 by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard's Resolution dated 25-3-2006. It is not in dispute that the subsidiary collected the toll representing itself to the bridge users to be the grantee of the appellant's obligations and nights in respect of the bridge. On a perusal of the definition of "franchise" given under Section 65(47) under the Finance Act, 1994, we note that it refers to an agreement by which the franchisee is granted representational right to provide service identified with the franchisor whether or not any 'service mark' is involved. Prima facie, in the absence of such an agreement, the appellant themselves would have provided the service to the people/State Government in respect of the bridge under the BOT agreement. They did provide this service for nearly 41/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exigible to service tax. The Circular did not advert to transactions like the present one involving collection of toll. Prima facie, therefore, the Circular is also not supportive to the appellant.
5. Nevertheless, we are not asking for full pre-deposit. We direct the appellant to pre-deposit an amount of Rs. 3 crores (Rupees three crores only) within six weeks and report compliance to the Assistant Registrar on 26-9-2012. Assistant Registrar to report on 27-9-2012. Subject to due compliance, there will be waiver of pre-deposit and stay of recovery in respect of the penalty imposed on the appellant and the balance amount of service tax and education cess and interest thereon.
(Pronounced & dictated in open Court)
X X X X Extracts X X X X X X X X Extracts X X X X
|
