TMI Blog2018 (11) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... - Mr. M. V. RAVINDRAN., MEMBER (JUDICIAL) And Mr. P. VENKATA SUBBA RAO, MEMEBER (TECHNICAL) Shri V. Ravindranath, Advocate for the Appellant. Shri Guna Ranjan, Superintendent (AR) for the Respondent. ORDER Per: M. V. Ravindran. This appeal is directed against Order-in- Original No. 42/2008 (PVSR) dated 26.09.2008. 2. Heard both sides and perused the records. 3. On perusal of records, it transpires that the issue is regarding demand of service tax for the period 01.07.2005 to 30.06.2006 from the appellant on the amounts collected by them as toll fee and paid to National Highways Authority of India (NHAI). It is the case of the Revenue that the appellant is engaged and conducting as a commission agent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomer and public relations services and includes services as a commission agent, but does not include any information technology services. Business Auxiliary Service means any service in relation to, (w.e.f. 10-9-2004) - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (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 (v) production or processing of goods for, or on behalf of the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promoting or marketing services provided by the client, inasmuch that undisputedly NHAI is a statutory body which has been constituted by the National Highway Authorities of India Act, 1988; has been in force from 1988 and it gives the NHAI a statutory position. On perusal of the said Act, we find that NHAI is a statutory body for development, maintenance and management of national highway and other highway power which were to be exercised by the Government of India. It is also seen that the said Act also authorises the NHAI to collect an amount as a fees from the users. 11. We find that the main argument of the ld. Departmental Representative and that the finding of the Adjudicating Authority for imposing service tax liability is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. v. CCE, (2011) 32 STT 269/12 taxmann.com 296 (CESTAT-Delhi), the Tribunal held that toll tax and fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spectfully 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 not considered as Business Auxiliary Service provided to NHAI. 13. Since we have discussed the matter on the merits of the case, also relying on various judicial pronouncements, we are not recording any finding or observation on various other submissions made before us both sides. 14. In view of the foregoing, in the facts and circumstances of this case, we set aside the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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