2010 (7) TMI 830 - AT - Service Tax

Rent-a-cab service - service tax not paid, even though the same has been collected - case of appellant is that when a vehicle is given to a client for a certain period of time for some consideration or for going from one place to another and charge is made on per KM basis or lump sum amount based on distance, such service cannot be held liable to service tax and is not covered by rent-a-cab service - Held that - no evidence has been brought out by the Revenue to show that vehicle was rented out for a specified period of time to a customer and the charges were not being collected on the basis of per KM/per hour or lump sum for distance travelled etc. - When the charges are revealed on the basis of per KM or lump sum for distance or per hour basis, it cannot be said to be covered by a rent-a-cab service. Another factor that is to be taken note of is that in this case there is no written agreement with any customer. Normally whenever vehicles are rented out for a specified period there would be a written contract specifying the conditions. The absence of such a contract also supports the case of the appellants. The appellants are not liable to pay service tax. However since having already collected the service tax, whatever has been collected is required to be deposited as per law with interest - there is violation of provisions of FA, 1994 rendering them liable to penalty u/s 77 of FA, 1994 - appeal allowed - decided partly in favor of appellant.

Summary

Issues:
1. Whether the service provided by the appellants qualifies as rent-a-cab service for the purpose of service tax liability.
2. Whether the appellants are liable to pay service tax and penalties under the Finance Act, 1994.

Analysis:
1. The main issue in this case revolved around determining whether the service provided by the appellants fell under the category of rent-a-cab service, thereby attracting service tax liability. The appellants argued that they provided services on a per kilometer or per hour basis, mostly to other tour operators or rent-a-cab service providers. They contended that since there was no formal contract with customers and charges were based on actual usage of the vehicle, their service did not qualify as rent-a-cab service. The appellants relied on previous tribunal decisions to support their position, emphasizing that charging on a per kilometer or lump sum basis does not make the service taxable under rent-a-cab service.

2. On the other hand, the Departmental Representative (DR) argued that the appellants provided vehicles to other rent-a-cab service operators, thereby falling within the ambit of rent-a-cab service as defined. The DR asserted that there was no distinction between hiring and renting, and even if the vehicles were given on a hire basis to rent-a-cab operators, the appellants would still be liable for service tax. The DR highlighted that the appellants collected service charges, supporting the Revenue's case. However, the tribunal noted that the Revenue failed to provide evidence showing that the vehicles were rented out for a specified period and charges were not solely based on kilometers traveled or hours of use.

3. The tribunal carefully considered the arguments from both sides and analyzed the facts of the case. It observed that the absence of a written agreement with customers, the basis of charging (per kilometer or lump sum), and the lack of evidence of renting vehicles for a specified period all pointed towards the appellants not being liable for service tax. While acknowledging that the appellants had collected service tax but failed to deposit it with the government, the tribunal found them in violation of the Finance Act, 1994, rendering them liable for penalties under Section 77. However, considering that the appellants were ultimately not liable for service tax, a liberal view was taken under Sections 76, 78, and 80 of the Finance Act, 1994 regarding penalties.

4. Consequently, the tribunal allowed the appeals but upheld the penalty imposed under Section 77 of the Finance Act, 1994 on all the appellants. It clarified that the service tax collected, along with interest, must be deposited as required by law, and it was not refundable. The judgment emphasized the distinction between rent-a-cab service and other forms of vehicle services based on the terms of usage and contractual agreements, ultimately determining the appellants' liability for service tax and penalties under the law.