2022 (7) TMI 1181 - AT - Service Tax

Taxability - Rent a Cab Operator Service - Rent a Cab Operator - nature of the service is not supported by any documentary evidence - absence of any documentary evidence to justify the claim of the assesse - HELD THAT - It is found that the appellant from the adjudication stage till this appellate stage claimed that the demand is not sustainable on the ground that vehicle which was used for Rent a Cab Operator is of 12 seater Therefore, the same is not covered under the Rent a Cab Operator service. They also submitted that in some cases they have provided their service as sub- contractor and for that reason also the Service Tax on the service of subcontractor is not taxable. It is also submission of the appellant that they have provided services to UNICEF. The claim of the appellant legally appears to be correct. However, the appellant has not submitted any documentary evidence in support of their claim either before the lower authority or before this Tribunal. Even department also not adduced any evidence in support of the show cause notice for demand of service tax about the nature of service. In this position, without having documents on record, the claim of the appellant cannot be established regarding non taxability of the service. In the interest of natural justice, one opportunity can be given to the appellant to present their case before the adjudicating authority and to submit all the documents whereby the claim of the appellant can be established - matter remanded to the adjudicating authority for re-consideration of the entire case a fresh - appeal allowed by way of remand.

Summary

Issues:
1. Service Tax liability for "Rent a Cab Operator" services.
2. Documentary evidence to support the claim of non-taxability.
3. Imposition of penalties under Section 76 and 78 simultaneously.

Analysis:
1. The appellant, engaged in providing taxable services as a "Rent a Cab Operator," was found to have short paid Service Tax after a CERA audit. A show cause notice was issued, and the demand was confirmed under Section 73(1) of the Finance Act, 1994. The appellant had paid the Service Tax and interest but contested the tax liability based on the nature of the service provided. The Commissioner (Appeals) upheld the order, noting the lack of documentary evidence supporting the appellant's claim of non-taxable services. The appellant, dissatisfied, filed the present appeal.

2. Despite multiple hearing dates and opportunities, the appellant failed to appear before the Tribunal. The appellant's claim regarding the service not being taxable due to the vehicle's seating capacity and subcontracting nature was noted. However, the appellant did not provide any documentary evidence to substantiate their claim at any stage. The Tribunal observed the absence of evidence from both the appellant and the department regarding the nature of the service. In the interest of natural justice, the Tribunal decided to remand the matter to allow the appellant to present their case and submit all relevant documents to establish their claim.

3. The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for fresh consideration. Additionally, the Tribunal highlighted that penalties under Section 76 and 78 cannot be imposed simultaneously, citing precedents. Consequently, the penalty imposed under Section 76 was set aside, and the appeal was disposed of by remanding the case to the adjudicating authority for further proceedings.

This judgment emphasizes the importance of providing documentary evidence to support claims, the right to present a case for natural justice, and adherence to legal precedents regarding the imposition of penalties in tax matters.