TaxTMI 
TaxTMI 
2013 (1) TMI 166
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....52.8 km to 163.6 km ) of the National Highway No.5 ( NH.5) and (ii) a section ( 217 km to 252 km ) of the National Highway No.9 (NH.9) in Andhra Pradesh, the former referred to as "TADA-Nellore Section of NH.5" and the latter referred to as "Nandigama-Ibrahimpatnam Section of NH.9". The work included construction, strengthening and widening of the two lane highways into four lane highways and the operation and maintenance and toll collection of the above sections through a "Concession" on " Build, Operate and Transfer" ( BOT) basis. 5. Accordingly, NHAI entered into an agreement dated 19.12.2000 with a Malaysian Company i.e. CIDBI Inventures SDN BHD ( for short "CIDBI"). This agreement was concluded after NHAI invited proposals from CIDBI for the above purposes and after the detailed project proposal submitted by CIDBI was accepted by NHAI. 6. Clause 5 of this agreement authorized CIDBI to transfer all rights, benefits, interests, duties and obligations under this Agreement to a "Special Purpose Vehicle" (SPV) to be constituted by CIDBI either solely or jointly with other parties for the purpose of implementing the project and the concession. The said clause further ....
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....respondent service tax of over Rs. 10,48,76,577/- with education cess on the toll charges collected by them at Venkatachalam Toll Plaza, Budanam Toll Plaza and Sullurpet Toll Plaza on NH.5 from 21.5.2004 to 31.12.2006. By another show-cause notice dated 16.4.2008, the Department demanded from the respondent, service tax of over Rs. 6,25,44,784/- with education cess on the toll collection for the period from 1.1.2007 to 31.12.2007. These demands were under the head "Business Auxiliary Service" as defined in Section 65(19) of the Finance Act, 1994(for short "the Act"). The show-cause notices also demanded interest on tax and cess under section 75 of the Act and proposed penalties under Section 76 and 77 of the said Act. The appellant i.e. the Commissioner passed a common order dated 17.10.2008 in relation to both the show cause notices confirming the demand of service tax and cess against the respondent under Section 73 (1) of the Act and also held that the respondent is liable to pay interest thereon under Section 76 apart from penalty of Rs. 2,000/- under Section 77 and Rs. 17,00,00,000/- under Section 78 in respect of the first show-cause notice. 12. Aggrieved thereby, the resp....
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.... as an agent of CIDBI. It therefore set aside the orders of assessment and allowed the appeals of the assessee. 16. Aggrieved thereby, the Revenue has filed the present appeals under Section 35G of the Central Excise Act, 1944. 17. Heard Sri Gopalakrishna Gokhale, learned Counsel for the Revenue/appellant herein and Sri G. Mohan Rao, learned counsel for the respondent in all these appeals. 18. Sri Gokhale, learned counsel for the Revenue contends that the orders of the Tribunal are contrary to law; that only CIDBI was legally authorized for collection of toll fee as per the concession agreement dated 27.3.2001; that there was no assignment of the right to collect toll by CIDBI to the respondent under the assignment agreement dated 29.6.2001; that the Notification dated 28.4.2004 issued by the Government permitted only CIDBI to collect the fees on the project highways as a concessionaire; and that the said Notification was amended by SO.No.1212 (E) dated 13.5.2009 substituting the words: "And whereas, the Authority has entered into an agreement with CIDB Inventures SDN BHD, Suite 15-3, 15 Floor, Wisma UOA II, No.21, Jalan Pinang 50450 Kuala Lumpur, Malaysia; "and wher....
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....ed CIDBI to transfer all rights, benefits, interests, duties and obligations of CIDBI under the said agreement to a SPV to be constituted by CIDBI. A concessionaire agreement dated 27.3.2001 was subsequently entered into appointing CIDBI as the Concessionaire inter alia to collect toll also apart from designing, engineering, financing, procurement, construction, completion, operation and maintenance. Later, CIDBI had promoted and incorporated the respondent on 11.5.2001 as a SPV and assigned all its rights to the respondent under the assignment agreement dated 29-06-2001 to which NHAI is also a party. Probably, by mistake in the Notification dated 28.4.2004, the Government of India authorized CIDBI to collect toll fee on the above project highways overlooking the fact that by that date, there was an assignment by CIDBI to the respondent and the respondent was actually collecting the toll fee. Later, on realizing this mistake, the later Notification dated 13.5.2009 was issued by the Central Government amending the preamble to the earlier notification dated 28.4.2004 as mentioned above so as to reflect the fact that the respondent was the concessionaire. By virtue of the said amendme....