TaxTMI 
TaxTMI 
2011 (5) TMI 257
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consideration are that the appellant herein was given a sub-contract by M/s. Noida Toll Bridge Company Ltd. (hereinafter referred to as NTBCL) for specified functions relating to operations of Delhi-Noida toll bridge (hereinafter referred to as DND bridge). The appellant was permitted and authorized by NTBCL to collect toll from the persons who are using the bridge. NTBCL under an agreement with Noida authority under the Government of UP by an agreement dt. 12-11-1997 executed construction of two bridges connecting Delhi and Noida under Built, Operate, Own and Transfer (BOOT) basis. Under the said agreement, NTBCL were assigned and authorized to recover pre-determined fee from the users of the said road and NTBCL were also at liberty to sub-contract aforesaid assigned function to other persons also. In terms of such assignment, the appellant entered into contract with NTBCL to collect the fees from the users of the bridge and also to carry out various specified functions relating to- (a) Optimize as far as possible the safety, availability, capacity and efficiency of the facility. (b) Collect the correct fee from each user and ensure as far as possibl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly indicates that the appellant is required to carry out various services which would fall under the category of BAS mainly "any customer care services provided on behalf of client" upto 10-9-2004 and post 10-9-2004, it would fall under the category of any customer care services provided on behalf of the client and or a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vii) of BAS. Coming to such conclusion, the adjudicating authority passed the following order:- ORDER (i) I confirm demand of service tax amounting to Rs. 77,91,642 (Rupees seventy seven lacs ninety one thousand six hundred and forty two only) and demand the same from M/s. Intertoll India Consultants (P.) Ltd., Noida under section 73(1) of Finance Act, 1994 along with interest as chargeable under section 75 of the Finance Act, 1994 on the amount of service tax evaded/not paid; and (ii) I also impose penalty of Rs. 1,00,00,000 (Rupees one crore only) upon M/s. Intertoll India Consultants (P.) Ltd., Noida under section 78 of the Finance Act, 1994. 4.3 Aggrieved by such an order, the appellant is in appeal before us. 5.1 Ld. Advocate appearing on beh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the client. It is his submission that the expression 'customer care' is generally used to describe the activities performed to provide customer service that seeks to acquire new customers, provide superior customer satisfaction and build customer loyalty. It is his submission that the activity of collection of toll fee in cash cannot be considered as customer care service. It is his submission that the appellant carried out the activity of collection of toll fee and there was no provision of services on behalf of the client as provided under clauses (vi) and (vii) of definition of BAS post 10-9-2004. It is his submission that that transactions with M/s. Banas Sand, wherein a tax of Rs. 7.3 lakhs is confirmed, by any stretch of imagination cannot be considered as customer care service as the activity of collection of municipal taxes was assigned to the appellant by M/s. Banas Sand. It is his submission that the persons paying such taxes i.e. municipal taxes cannot be considered as customers of M/s. Banas Sand. In view of the above, sub-clauses (vi) and (vii) of the definition of BAS would not be applicable prior to 10-9-2004 and post 10-9-2004 also. The definition will not cover t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s paid a fixed amount of 11 per cent by the NTBCL. This amount is nothing but an amount received for the services rendered. It is his submission that the users of the DND bridge are the customers of NTBCL and these activities should have been carried out by the NTBCL being carried out by the appellant and hence, the services are rendered by the appellant on behalf of their client i.e. NTBCL. It is also his submission that services like arranging ambulance, tow vehicles, cleaning of the road, display of notification, selling of cards etc. are rendered for the users of DND bridge and these activities, of course, have link with user satisfaction. In performing such activities, users obviously come into picture and if such users are not satisfied, they are eligible to file or lodge a complaint which itself indicates that the appellant is providing customer care service. He would reiterate the detailed findings of the adjudicating authority. 7. We have considered the submission made at length by both sides and perused the records. The undisputed facts are that the appellant herein is authorized by an agreement by NTBCL to collect toll tax and user fee from the people who are using th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (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 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 (f) 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)&n....