Tribunal overturns Service Tax demand, finding tolling operations not Business Auxiliary Service. Consequential relief granted.

The Tribunal set aside the confirmation of demand for Service Tax and penalties under the Finance Act, 1994, finding that tolling operations by the appellant did not constitute Business Auxiliary Service. The appeal was allowed, providing consequential relief to the appellant, with the Tribunal noting that the issue had been settled in previous decisions.

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Issues:
The appeal challenges the confirmation of demand for Service Tax under the proviso to Section 73(1) of the Finance Act, 1994, along with penalties imposed under Sections 76, 77, and 78 of the Act.

Facts:
The appellant was alleged to have contravened provisions of the Finance Act, 1994 by providing taxable services without registration and payment of service tax. The appellant collected toll tax at "Doraha Toll Plaza" on behalf of NHAI, for which they failed to pay service tax. An enquiry was conducted, and a show cause notice was issued. The adjudicating authority confirmed the demand of service tax, interest, and penalty. The appellant appealed to the Commissioner (Appeals), who upheld the original order.

Appellant's Argument:
The appellant argued that tolling operations were not covered under Business Auxiliary Service as they were not incidental or auxiliary to NHAI's activities. They cited various decisions supporting their position. They also contended that the contract was composite, and tolling operations alone should not be subject to service tax. The appellant raised the issue of time bar due to the absence of mala fide intent.

Department's Response:
The Authorized Representative reiterated the findings in the impugned order.

Tribunal's Decision:
The Tribunal found that tolling operations by the appellant did not constitute Business Auxiliary Service provided to NHAI, based on previous decisions. The Tribunal set aside the impugned order and allowed the appeal, providing consequential relief to the appellant. The Tribunal noted that the issue had been settled by various benches, making it non-resintegra.

Conclusion:
The Tribunal held that the demand for service tax under Business Auxiliary Service was not sustainable, setting aside the impugned order and allowing the appeal of the appellant with consequential relief, if any.

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