TMI Blog2013 (4) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. If that be so, they cannot be said to have rendered any 'Business Auxiliary Service'. Thus, we are of the considered view that the activity of the appellant in construction of roads on BOT basis is not leviable to service tax either under commercial or industrial construction service, works contract service, maintenance, management or repair of immovable property service or under Business Auxiliary Service. Accordingly, the impugned orders is set aside. - Appeal No. ST/774 to 777/12, ST/780 to 782/12, ST/726 and 750/12 - Final Order Nos. A/509-517/2013-WZB/C-I(CSTB) - Dated:- 13-3-2013 - P.R. Chandrasekharan and Anil Choudhary, JJ, For the Appellant Bharat Raichandani and Philip Abraham, Advs. For the Respondent V.K. Agarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, exemption from levy of service tax has been provided under Notification no. 24/2009-ST dated 27/07/2009 and the said exemption has been given retrospective effect from inception of levy in 2005 in the budget 2012. Thus, it is evident that the government does not want to levy any service tax on the activity of road construction. The appellants who were awarded the contracts for road construction were allowed to collect toll charges towards meeting the cost of construction and they did not pass any part of the toll charges to the Government or the NHAI. Therefore, they cannot be brought under the tax net under the category of 'Business Auxiliary Service'. 4. The learned Additional Commissioner (AR) appearing for the Revenue reiterates th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams." 5.3 Further, service tax levy on under 'Maintenance and Repair of roads' vide section 65(105)(zzg) of the said Finance Act, has also been exempted under notification no. 24/2009-ST dated 27/07/2009 and the said exemption was given retrospective effect from the date of inception of the levy, that is, from 16 th June, 2005 vide section 97 of the Finance Act, 2012. Thus, it is very clear that the construction/maintenance/repair of roads have been specifically excluded from the service tax levy by the Government. 5.4 The Revenue's case is that the activity undertaken by the appellant comes within the category of 'busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of the principles of natural justice and on that ground along, the show cause notice and the impugned order are liable to be set aside. Be that as it may, let us see whether there is any merit in the allegation against the appellants. 5.5 The appellants herein have undertaken the construction of roads. To finance/compensate for the cost of construction, the contractors have been permitted by the Government/NHAI to collect toll charges from the users of these roads. Thus the toll charges have been collected by the appellants on their own account. If that be so, they cannot be said to have rendered any 'Business Auxiliary Service' to the Government or NHAI or anybody else. 5.6 Further, the Central Board of Excise and Customs vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994]. 4. Further, an SPV formed as a result of agreement between NHAI or State Authority and the concessionaire under the BOT arrangement, cannot be considered as an agent of the NHAI. Renting, leasing or licensing of vacant land by the NHAI or State Authority to an SPV for construction of road and such construction do not attract service tax. 5. This Circular may be communicated to the field formations and service tax assessees, through Public Notice/Trade Notice. Hindi version to follow." The above circular issued by the Board makes it abundantly clear that there is no liability to pay service tax on the toll charges collected by the service providers who have undertaken construction of roads on BOT basis under the category o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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