TaxTMI 
TaxTMI 
2023 (7) TMI 258
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..... 39,46,036/- under proviso to Section 73 (1) of the Finance Act, 1994 and imposed equivalent penalty under Section 76 and 78 of the Finance Act, 1994. Ld. Commissioner also imposed penalty of Rs. 1,000/- under Section 77 of the Finance Act, 1994. Aggrieved by the said order, the appellant is before us. 2. Briefly the facts of the case are that the show cause notice dated 23.05.2008 was issued to the appellant who was engaged in providing the services under 'Business Auxiliary Services' alleging that they appeared to have contravened the provisions of Section 68, 69 & 70 of the Finance Act, 1994 and Rules, 4, 5, 6 and 7 of Service Tax Rules, 1994 by providing the said taxable services without obtaining registration and without payment of....
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.... order-in-original vide impugned order dated 02.05.2011. Hence, the present appeal. 5. Heard both the parties and perused the material on record. 6. Ld. Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding judicial precedents on the same issue. She further submitted that in the present case, the demand has been confirmed on the ground that the tolling operations carried out by the appellant for NHAI are covered by Business Auxiliary Service under clause (iv) of Section 65(19) of the Act and clause (vii) of Section 65(19) of the Act. She further submitted that in the impugned order, it was held that the appel....
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....emand under Business Auxiliary Service is not sustainable. For this submission, she relied upon the following decisions:- • Sukhmani Society for Citizen Services Vs. CCE & ST, Chandigarh, 2017 (47) STR 172 (Tri.-Chandigarh) • Mateshwari Indrani Contractors Pvt. Ltd. Vs. CCE & ST, Jaipur, 2018 (6) TMI 665- CESTAT New Delhi • Commissioner of Service Tax Vs. Intertoll ICS CE CONS O & M Pvt. Ltd., 2013 (31) STR 477 (Tri.-Del.) • M/s. PKSS Infrastructure Vs. CST, Delhi-I, 2018 (10) TMI 1476- CESTAT, New Delhi • PNC Construction Co. Ltd. Vs. CCE, Chandigarh, 2012 (12) TMI 878- CESTAT, New Delhi She further submitted that the Tribunal has decided the identical issue in various oth....
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.... activities like road maintenance, road property management, incident management engineering improvements and toll operations. Therefore, such a composite contract cannot be vivisected and part of it i.e., tolling operations alone cannot be subject to service tax. She also submitted that the indivisible nature of the whole contract is evident from the tender itself wherein NHAI desired the work to be completed as a whole and was not interested in the individual components separately. She also submitted that the value of taxable service is incorrect because the gross rate of Rs. 14,70,000/- specified against the Bill of Quantities (in short BOQ) of 'toll operations' is for all the jobs mentioned under the said BOQ. She also raised the issue ....
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....ved in the present case is whether the demand of service tax under the category of 'Business Auxiliary Service' in sustainable in the present case and whether the tolling operations undertaken by the appellant are covered by the Business Auxiliary Service or not? This issue has been considered by various benches of the Tribunal and in the appellant's own case for the earlier period it has been held that the collection of toll by the assessee would not be considered as Business Auxiliary Service provided to NHAI as the assessee is not rendering any service which is incidental or auxiliary on behalf of NHAI and the NHAI is not undertaking any business activity. In the appellant's own case as reported in 2012 (12) TMI 878 - CESTAT, NEW DELH....