TMI Blog2018 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... No. ST/25/2009-DB - Final Order No. A/11556 / 2018 - Dated:- 27-7-2018 - Hon ble Mr. Ramesh Nair, Member ( Judicial ) And Hon ble Mr. Raju, Member ( Technical ) Shri Anupam Dighe, Advocate for the Appellant Shri Gobind Jha, Superintendent ( AR ) for the Respondent ORDER Per : Raju This appeal has been filed by M/s. Intertoll ICS Toll Management Company Pvt. Limited against the confirmation of demand under clause (iv) of the definition of Business Auxiliary Service and imposition of penalties under sections 76, 77 and 78. 2. Ld. Counsel for the appellant submits that appellant is engaged in collecting of toll on Ahmedabad- Mehsana highway. The appellant is SPV formed for execution of Ahmedabad- Mehsana sub-contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or belonging to the client; or ii. ... .. 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 Therefore, he argued that the case laws relied upon by the appellant related to the demand made under clause (i) of the definition of Business Auxiliary Service and thus, are not applicable to the instant case. 4. Ld. Counsel, in rejoinder, pointed out that the decision of the Tribunal in the case of Sukhmani Society for Citizen Services(supra), held that toll charges being in the nature of tax and thus, exempted in terms of Notification No. 13/2004-ST dated 10.09.2004, even for the period after 10.09.2004. 5. We have gone through the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be business concern nor a commercial concern not being engaged in any business activity. Therefore providing business auxiliary services by respondents to such NHAI is inconceivable. Therefore, for such reason, we dismiss the appeal of the Revenue without approving reasons given by the adjudicating authority. We also find in the case of PNC Construction Co. Ltd. v. 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., dated 23-12-11, the Tribunal observed that NHAI has availed the services of respondent and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise was agitated and the bench took the following view : - 10. As regards the Service Tax liability under the Business Auxiliary Service on collection of toll, we find that the order of the Tribunal in the case of Intertoll India Consultants (P) Ltd. (supra) (wherein one of us was the Member) and Swarna Tollway (P) Ltd. (supra) covers the issue in favour of the assessee. Accordingly, respectfully following the ratio laid down in these two decisions, we find that the Service Tax liability under the Business Auxiliary Service for toll collection is liable to be set aside and we do so. 12. It can be seen from the above reproduced authoritative judicial pronouncements on the issue, the collection of tolls by the appellant is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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