Bangalore Branch of SIRC of the Institute of Chartered Accountants of India
contract’ service, the long term service rendered was to be classified under appropriate heading depending on the nature of the activity carried out by the assessee. Prima facie this does not alter the levy by any argument of retrospectivity or any prospectivity of application of the law. Hence, there is no reason to waive the requirement of pre-deposit.[Ved Contractors Pvt Ltd vs. CCE, DelhiII 2011-TIOL-1008-CESTAT-Delhi]
The appellant was given a subcontract by M/s. Noida Toll Bridge Company Ltd. (NTBC ) for specified functions relating to operations of Delhi-Noida toll bridge ( 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 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. In terms of the contract, NTBCL allowed the appellant to retain 11% of the actual gross fees collected from the users of DND Bridge. The appellant took over the operation and maintenance of DND bridge. The Commissioner came to the conclusion that the agreement entered by the appellant with NTBCL clearly 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. The Adjudicating Authority-Commissioner confirmed the demand and imposed a penalty of Rs. 1 Crore. Aggrieved by the order, the appellant appealed before the Tribunal. Tribunal found that NTBCL was declared as owner of the DND bridge by the Noida authority under the Govt. of UP. The owner had given rights of collection of toll tax to the appellant and to retain a percentage of it and remit the balance. It can be seen that the appellant herein is collecting an amount as toll from the users of the DND bridge. The users of toll fee paid bridge cannot be considered as customers. The persons who are using the DND bridge do not fall within the purview of definition of ‘customer’ as defined in the Advanced Law Lexicon. The Tribunal also held that, first and foremost, it is to be noted that NTBCL is not a client of the appellant as the appellant is not promoting any customer care service of NTBCL. There is no visible activity done to please the user of the DND bridge to take care of their needs or something which is done, which induces them to come again and again to the said DND bridge. It may be noted that the users of DND bridge may be paying the toll fees reluctantly as that is the only means to connect the two banks of the rivers. The Tribunal found strong force in the contention raised by the respondent that the activity of the appellant would be covered under the ‘Management, Maintenance and Repair of immovable property
services’. Such services are liable to be taxed from 16/06/2005. A category which is specifically covered under the service tax liability from a specific date cannot be taxed under any other headings prior to that date is the law which has been settled by the High Court of P&H in the case of CCE Vs. Lal Path Lab (P) Ltd. Therefore, the appeal was allowed. [M/s Intertoll India Consultants Pvt Ltd vs. CCE, Noida 2011-TIOL-1005-CESTAT-DEL] CENTRAL EXCISE AND CUSTOMS
The appellant commenced production of Texturised Polyester Filament Yarn from July 2008. They did not take Central Excise registration and filed a declaration dated 2.6.2008 under Rule 9 of Central Excise (No.2) Rules, 2001 intimating the Deputy Commissioner that they are availing full exemption from payment of whole of Central Excise duty under Notification No.30/ 04-CE dated 9.7.2004. They cleared the goods for home consumption as well as exports without payment of duty of excise by availing exemption under Notification No.30/04 upto 01.09.2009 and thereafter the goods were exported under the DEPB scheme. The appellant obtained registration on 09.10.2009 and filed a refund claim on 26.10.2009. The lower adjudicating authority rejected the refund claim on the ground that the goods were not exported under a bond or letter of undertaking and also, the appellant was not registered with the Central Excise. The lower appellate authority also rejected the refund claim. The appellant filed an appeal with the Tribunal. The Tribunal for the purpose of deciding whether the appellant is eligible for Cenvat credit for the period when they were not registered, relied upon the
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