TaxTMI 
TaxTMI 
2019 (12) TMI 797
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....ad of Business Auxiliary Services. He pointed out that the said issue is squarely covered by the decision of this Tribunal in the case of Larson & Toubro Ltd. 2019 (21) GSTL 428 (Ahmd.) and also the decision of this Tribunal in the case of Rishi Enterprises 2019 (25) GSTL 579 (Tri - Del.). 3. We have considered rival contentions made by Learned AR and also the grounds of appeal. We find that in the instant case is squarely covered by the decision of this Tribunal in the case of Larson & Toubro Ltd. (supra). In the aforesaid decision following has been observed: "4. We have gone through the rival submissions. The definition of BAS at the material time read as follows : "Business Auxiliary Service" means any service in relation to :- (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) Any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and pu....
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....ses of the agreement are relevant in this regard : (A) The State of Gujarat (the "State") is one of the highly industrialized states in India. The Government of the State ("GoG"), in order to meet the growing demand for a developed, efficient, goods quality and expensive system of road transportation, has formulated a policy enabling private participation in the development, construction, reconstruction, repair, upgrading, management, operation and maintenance of roads within the State. In order to enable to due implementation of this policy, The Bombay Motor Vehicles Tax Act, 1958, which had earlier prohibited the levy of the tolls on motor vehicles utilizing roads within the territory of the State, has been amended, by the Bombay Motor Vehicles Tax (Gujarat Amendment) Act, 1994, to enable GoG to levy tolls on motor vehicles utilizing roads that have been either constructed, reconstructed, upgraded or repaired by private enterprises which have been specifically authorized by GoG to do so. The amended Act upgrading or repaid of the road to collect the toll in relation to such road on the terms and conditions and in such manner as may be prescribed. (B) Infrastruct....
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....ration and maintenance of roads on a 'commercial basis'. The construction and operation and maintenance has been sub-contracted to the appellant by IL&FS through a corporate entity incorporated in the state and promoted by Govt. of Gujarat and IL&FS specifically for this purpose. From the above terms of the contract, it is apparent that the construction of road, and its operation and management have been undertaken strictly on commercial basis and the toll tax collected is being used for recovery of investment and operating cost on Build Own Operate Transfer (BOOT) basis. In these circumstances merely because a project is funded by toll tax, it cannot be said no service has been provided. Especially on the ground that during the phase when the toll tax is collected, the property owned by a corporate, promoted by Govt. of Gujarat and IL&FS. In view of above, it is apparent that the toll collected is a compensation given to a private operator for providing the services of road used to the public on BOOT basis. Thus, the facility and usage of road against payment of toll is a service provided by the AMTRL. 4.3 Perusal of the contract shows that the appellant are, inter alia, ....
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....the users of the DND bridge. To our mind, the users of toll fee paid bridge cannot be considered as customers. The persons who are using the DND bridge cannot be called as customers of either the appellant or NTBCL for a simple reason, because the expression 'customer' as defined in Advanced Law Lexicon read as under :- "Customer is a person with whom a business house or a business man, has regular or repeated dealings; a purchaser of goods; one who frequents any place of sale for the sake of purchasing or ordering goods. A business customer is one who has the use and habit of resorting to the same person or place to do business; therefore, a stranger who goes into bank to get a cheque collected, is not a customer of the bank." It can be seen from the above definition, a person is considered as customer of a business house when he has repeated dealings with the business house. To our mind, by any stretch of imagination, individual using the DND bridge and pays toll to the authority cannot be considered as a customer. The definition of the BAS either prior to 10-9-2004 or post - 10-9-2004 has to be considered from the point of view of whether the appellant has prov....
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....facilities and local police for the traffic arrangements. In these circumstances, we find that every user is a customer of AMTRL and the appellants are providing services to the customers (the users) on behalf of AMTRL and thus the activity would also be covered under clause (iii) of the definition of BAS. From the above it is apparent that the appellants are providing a bouquet of services to the customers on behalf of the principal AMTRL and thus the appellants are also covered by the clause (iii) of the definition of BAS. 4.5 It is also seen that appellants are engaged in the following activities : • Supply of toll tickets to users and collect toll from users; • Maintain books and records about toll collected, traffic volumes, vehicles classification, exempted vehicles, etc.; • Establish toll procedures, minimize time taken in collection of toll, ensure that exempted vehicles use only service roads and maintain toll plaza; • Deposit each business day collection in to the toll account and ensure security of the amount; • The toll shall be collected by single tickets using Toll Ticket Machines which....
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....CL were required to mainly provide following services:- i. Collection and control of Toll revenue at each plaza by manual computerized method. ii. Transfer of Toll revenue to M/s AVEXCL account on a daily basis. iii. Insurance of Toll revenue as per the terms agreed upon with M/s AVEXCL. iv. Safe keeping, handling, transporting, reconciliation and banking of toll revenue. v. Control of traffic for the Toll plaza area. vi. Control of and accounting for all the tolls collected. vii. Toll reporting and administration. viii. Toll related personnel management. ix. Security of toll plaza. 4.5 It appears from the statements of Shri Suresh Ambalal Mistry and 'form of Agreement' dated 31.05.2003 (alongwith the Bid document) discussed in above para that M/s KCL was providing incidental and auxiliary support Service to M/s ACEXCL in collection of toll fee. They were issuing bills in the form of toll fee tickets to the users. M/s KCL were also collecting toll fee on behalf of their client M/s AVEXCL from the users of said road, and were depositing the same in Toll account and also making arrangement for s....