TaxTMI 
TaxTMI 
2015 (8) TMI 592
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....istered with the service tax authorities. Coming to such a conclusion, a show-cause notice dated 10.04.2007 was issued for demand of service tax liability for the period 01.07.2003 to 31.01.2007 under the head "Business Auxiliary Service" as also for demanding interest and for imposition of penalty. Appellant contested the show-cause notice on merits inter alia pleading that NHAI is Government of India and are providing sovereign service through them. In any case, the service or collection of toll and repatriating the same to NHAI will not be covered under Business Auxiliary Service. 2.1 A plea on limitation was also taken before the Adjudicating Authority. The Adjudicating Authority after following the due process of law did not agree with the contention raised and confirmed the demands raised along with interest and also imposed penalties. 3. Ld. CA appearing on behalf of the appellant would take us through the contracts /agreements signed by the appellant with NHAI. He would also take us through the entire case records and submit that NHAI is not in the activity of development, maintenance and management of National highway, which is a statutory function/body towards public we....
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....presentative, on the other hand, would draw our attention to the very same agreement and submit that the said agreement clearly indicates that appellant is appointed as a firm for collection of fee/toll for users on highway and shall be done through open system of collection. He would submit that the entire agreement if it is ready holistically, it would indicate appellant being appointed as agent for collection of toll and remittance thereof, by directing him to retain as commission a portion of the amount collected as toll and for the services rendered of toll collection. He would also submit that the argument of the appellant for not being included the services under Business Auxiliary Service is incorrect as there has been a service of NHAI to the user of National Highway and appellant are in turn providing service, that are incidental or auxiliary to the provisions of such service by collection of toll by issuing fees, depositing of toll collection in the designated bank, maintaining books of relevant toll collection, reporting of frequency maintenance records. It is submitted that the scope of words "incidental or auxiliary" will have to be considered from the activity which ....
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....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 (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 acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person - (i) deals with goods or services or documents of title to such goods or services; or(ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or services; or(iv) undertakes any a....
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....ppeal of the Revenue without approving reasons given by the adjudicating authority." We also find in the case of PNC Construction Co. Ltd. vs. CCE (supra), an identical view has been taken which is as under:- "4. After hearing both the sides, we note that identical issues were the subject matter of the Tribunal's decisions. In this case of Intertoll ICS CE Cons O&M P. Ltd. vide Final order no. ST/A/34/12-Cus, dtd. 23.12.11, the Tribunal observed that NHAI has availed the services of respondent and the said NHAI is not established by Revenue to be business concern or a commercial concern engaged in any business activities. Therefore, providing BAS to such NHAI is not conceivable. Accordingly appeal filed by the Revenue was dismissed. Similarly in the case of Intertoll India Consultants P. Ltd. vs. CCE [2011] 32 STT 269/12 taxmann.com 296 (Cestat-Delhi), the Tribunal held that toll tax and fee for use of bridge, by retaining the percentage of such collection, the activity cannot be held to be falling under BAS. In the case of Swarna Tollway P. Ltd. vs. CC & CE [2011] 32 STT 162/ 12 Taxmann.com 49 (Bang-CESTAT), again the same status was reiterated. As regards limitation, we fi....