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Shri Jivanlal Joitaram Patel Versus Commissioner of C. Ex. & Service Tax, Ahmedabad-III

2016 (2) TMI 611 - CESTAT AHMEDABAD

Business Auxiliary Service - Activity of maintaining complete Toll Operation, supply of Man Power and maintenance of Toll Collection System including Plaza maintenance etc. - in the case of Swarna Tollway (Pvt.) Ltd Vs CCE Guntur [2011 (5) TMI 192 - CESTAT, BANGALORE], the Tribunal allowed the appeal of the Assessee, on the identical issue, where the toll collection is related to the National Highway Authority of India. The Tribunal consistently viewed that the National Highway Authority of Indi .....

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nd set aside - Decided in favor of assessee. - Appeal No.ST/197/2008-DB - Order No.A/10013/2016 - Dated:- 6-1-2016 - MR. P.K. DAS, MEMBER (JUDICIAL) AND MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Petitioner: Shri Jigar Shah, Advocate For the Respondent: Shri Alok Srivastava, A.R. ORDER PER: P.K. DAS Heard both sides and perused the records. 2. The relevant facts of the case, in brief, are that the Appellant entered into an agreement with National Highway Authority of India (NHAI) for maintainin .....

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ce and the case laws as under:- i) Patel Infrastructure Pvt. Ltd. Vs CCE Rajkot-2014 (33) STR 701 (Tri-Ahmd) ii) Intertoll India Consultants (P) Ltd Vs CCE Noida-2011 (24) STR 611 (Tri-Del) iii) Ideal Road Builders P. Ltd Vs CST Mumbai-2015 (40) STR 480 (Tri-Mum) iv) CST Delhi Vs Intertoll ICS CE CONS O & MP Ltd-2013 (31) STR 477 (Tri-Del) v) Swarna Tollway (Pvt.) Ltd Vs CCE Guntur-2011 (24) STR 738 (Tri-Bang) vi) CCE Guntur Vs Swarna Tollway (Pvt.) Ltd-2013 (31) STR 419 (A.P.) 4. The learne .....

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lity provided by the NHA. It is submitted that the Tribunal overlooked that in all the cases, there was alternative route available to the commuter. The learned Authorised Representative also drew the attention of the Bench to the portion of the contract as reproduced in the impugned order. 5. For the purpose of better appreciation of the case, we reproduce below the relevant portion in the case of Intertoll India Consultants (P) Ltd (supra) as under:- Post 10-9-2004 (19) business auxiliary serv .....

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se 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 se .....

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ludes 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 activities relating to such sale or purchase of such goods or services; (b) information technology service means any service in relation to designing, developing or maintaining of computer s .....

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of U.P. The owner had given rights of collection of toll tax to the appellant and to retain a percentage of it and remit the balance. It can be seen that the appellant herein is collecting an amount as toll from the users of the DND bridge. To our mind, the users of toll fee paid bridge cannot be considered as customers. The persons who are using the DND bridge cannot be called as customers of either the appellant or NTBCL for a simple reason, because the expression customer as defined in Advanc .....

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considered as customer of a business house when he has repeated dealings with the business house. To our mind, by any stretch of imagination, individual using the DND bridge and pays toll to the authority cannot be considered as a customer. The definition of the BAS either prior to 10-9-2004 or post-10-9-2044 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 .....

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vocate 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 P&H in the case of C.C.E. v. Lal Path Lab (P) Ltd. (supra). 10. As regards the collection of .....

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