2010 (4) TMI 283 - HC - Service Tax

Rent-a-cab service vehicles were hired from the market - definition of Cab as per Section 65 (20) of the Finance Act, 1994 - Tourist permit Held that - It will be seen that under the Motor Vehicles Act, the term tourist permit did not occur. It occurred only in Rules 82 to 85. Perhaps, therefore, the language of the old Section 65 (44) contemplated a tourist permit granted under the rules. By the amendment, the whole concept has been changed and what is now contemplated is only a permit granted under the Act and the Rules . Even at the cost of repetition, we may show that a CEA No.90 of 2006 6 tourist permit is not granted under the Motor Vehicles Act. It is not even contemplated therein. The terminology of tourist permit is not to be found even in Section 88(9) of the Motor Vehicles Act. It is to be found only under the Rules 82 to 85. Therefore, it is obvious that the tourist permit is not required for attracting the provisions of Section 65(52) of the Finance Act - , if the vehicle is used for providing transport service (as in the present case), then it will amount to providing taxable service under the Act and the respondent-firm was liable to pay service tax. - transport service provided by the respondent-firm to the IOC was a taxable service, the Tribunal was not correct in taking the contrary view and all the questions raised in this appeal are answered in favour of the revenue and against the assessee decided in favor of revenue.

Issues Involved:
1. Whether the matador rented by the Respondent falls within the definition of 'Cab' as per Section 65 (20) of the Finance Act, 1994.
2. Whether the Tribunal was correct in holding that there was no renting out of cabs as the vehicles continued to be with the operator.
3. Whether the use of matador by the Respondent amounted to a transport service.
4. Whether the services provided by the Respondent are covered under the definition of "Rent-a-Cab Scheme Operator" under Section 65 (59) of the Finance Act, 1994.

Detailed Analysis:

1. Definition of 'Cab' under Section 65 (20):
The core issue is whether the matador rented by the respondent falls within the definition of 'Cab' under Section 65 (20) of the Finance Act, 1994. The court noted that the respondent-firm was providing transport services to the IOC during the relevant period, as acknowledged by IOC. The court emphasized that the Finance Act introduced service tax to cover services that constituted a significant portion of the GDP. According to Section 65, a "rent-a-cab scheme operator" means any person engaged in the business of renting cabs, and thus, the service provided by the respondent-firm falls under this category.

2. Tribunal's Holding on Renting Out of Cabs:
The Tribunal had held that there was no renting out of cabs because the vehicles continued to be with the operator. However, the court found this reasoning flawed. The Tribunal's decision was based on the ground that the cabs were not leased out by the respondent for any interval of time for use by the IOC according to its discretion. The court noted that the Tribunal ignored the legal position that the service provided by a rent-a-cab scheme operator in relation to the renting of cabs is liable to service tax under the Act.

3. Use of Matador as Transport Service:
The court examined whether the use of the matador by the respondent amounted to a transport service, especially when the matador was exclusively at the command of IOC. The court concluded that the transport service provided by the respondent-firm to IOC was indeed taxable. The court referenced Section 66 of the Act, which states that service tax is charged on taxable services provided to any person by the person responsible for collecting the service tax.

4. Coverage under "Rent-a-Cab Scheme Operator":
The court analyzed whether the services provided by the respondent are covered under the definition of "Rent-a-Cab Scheme Operator" under Section 65 (59) of the Finance Act, 1994. The court highlighted that the respondent-firm's services were taxable as they fell under the category of renting cabs. The court dismissed the argument that the respondent-firm was not liable to pay service tax because it did not hold a tourist permit. The court clarified that Section 65 does not specifically require a tourist permit but rather focuses on the use of the tourist vehicle by a tour operator.

Conclusion:
The court concluded that the transport service provided by the respondent-firm to IOC was taxable. The Tribunal had erred in its judgment by ignoring the legal provisions. The court answered all the questions in favor of the revenue and against the assessee. Consequently, the court set aside the Tribunal's order and restored the order of the Commissioner (Appeals).

Final Order:
The appeal was accepted, the impugned order of the Tribunal was set aside, and the order of the Commissioner (Appeals) was restored.

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