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TMI Blog2013 (7) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... Advs. For the Respondent : Shri B B Sharma, AR. PER : G Raghuram Shri Anil Kumar Agnihotri, Proprietor, Jai Santoshi Maa Travellers and Shri Ajai Kumar Gupta, proprietor of Ajai Kumar Gupta Sons, both proprietary concerns preferred these appeals against orders of the Commissioner (Appeals), Central Excise, Kanpur (both) dated 13.3.2006 whereby the respective adjudication orders, dated 9.9.2004 passed by the Deputy Commissioner, Central Excise and Service Tax, Agra were confirmed and the appeals dismissed. 2. The relevant facts in both the appeals are substantially similar and the applicable statutory provisions are also in pari materia. Having heard the ld. Counsel Shri Debashish Moitra for the appellants and the ld. A.R. for the respondent-Revenue, we dispose of both the appeals by this common judgment. 3. Facts, to the extent relevant and material for the purposes of the appeals as arising in ST Appeal No.326/2006 are considered, as illustrative of the relevant factual and normative matrices in both appeals. (a) The appellant (assessee) by its proprietor Anil Kumar Agnihotri was issued a show cause notice dated 27.2.2004 alleging that the addressee provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of vehicles at the disposal of the service recipient as per the agreement; liability for failure to do so and the obligation to bear all the expenses towards fuel, salary of drivers and maintenance of the vehicles. 5. Admittedly, neither was the assessee registered under provisions of the Act; had filed monthly returns nor remitted service tax even after sensitization by Revenue of the liability. Before the authorities below as well as before us, the contention urged on behalf of the assessee is that the activity of providing vehicles either on monthly charge basis or on call basis to GAIL constitutes hiring of motor vehicles and not rent-a-cab service and therefore the assessee is immune to the liability of service tax, in terms of Section 65(105) (o) of the Act. The primary and the appellate authority concluded to the contrary. 6. Several precedents were cited before us including decisions of the Madras High Court, the Punjab and Haryana High Court and of this Tribunal, in support of competing interpretations of the relevant statutory provisions. Before we proceed to analyses of the precedents cited at the Bar, we undertake primary analysis of the relevant provisions. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Madras High Court in Secy. Federn of Bus-operators Assn. of T.N. vs. UOI reported in 2001 (134) ELT 618 (Mad.). A batch of writ petitions were filed by Stage Carriage operators owning spare buses covered under spare bus permits; contract carriage operators owning vehicles covered by permits under Section 74 of the 1988 Act; and owners of maxi cabs having permits under Section 74 of the said Act. Levy of service tax on the writ petitioners was challenged on several grounds including constitutional validity of provisions of the Act (an aspect not relevant to the issue before us). The Madras High Court repelled the challenge based vires of the Act and proceeded to determine the other contentions advanced on behalf of the several writ petitioners. In so far as maxi cab/motor cab operators are concerned, the petitioners contended that permits for their operations were also granted under Section 74 of the 1988 Act and therefore operators of maxi cab/motor cab are not tour operators but are contract carriage operators. It was also contended that many of them did not have licences or permits under the Scheme of 1989 and were thus immune to the charge of service tax. This latter cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 27 (Tri-Del.) the issue again fell for consideration before the Tribunal. Despite referring to the Madras High Court decision in Secy. Federn of Bus-operators Assn. of T.N., this Tribunal followed its earlier decision in Kuldip Singh Gill reported in 2006 (3) STR 689, to hold that when a cab operator provides his cab with a driver to his client on demand, for going from one place to another and charges him on per Km. basis or a lump sum amount based on distance (as fixed with the client) and control of the vehicle always remains with the cab operator/driver, transport service is provided and the activity would be outside the purview of rent-a-cab operator service. The judgment Secy. Federn of Bus-operators Assn. of T.N. was distinguished on the ground that said judgment did not concern itself with the meaning and scope of the taxable service defined as rent-a-cab operator service but was concerned with the issue whether the legislation is competent; that before the Madras High Court there was no controversy about the meaning of the rent and that this expression (rent) was rightly dealt with in K. S. Gill case by this Tribunal. 14. Since the R.S. Travels judgment is based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IL, the conclusion is irresistible and incontrovertible, that the assessee had provided the taxable service defined in Section 65(105)(O) read with Section 65(91) of the Act. 20. The adjudication order as confirmed by the Order in Appeal is therefore, impeccable and not susceptible to appellate reversal. 21. Ld. Counsel for the appellants has also contended that irrespective of legitimacy of the assessment and levy of service tax, assessment and levy of penalty under Sections 76 to 78 of the Act is unsustainable because the assessee/appellant had bona fide believed that there is no liability to service tax. This contention is stated to be rejected. Ignorance of law is not an excuse. Ignorantia Juris non excusat is the principle on which this ancient and uncontested doctrine is founded. An Act of the appropriate legislature is operative from the moment of its vitality. The vitality of a legislation is not contingent upon its specific knowledge by an individual nor does a plea of ignorance of a legislative provision eclipse its efficacy qua that person. 22. Ld. Counsel for the appellants has commended for our consideration the judgment of Gujarat High Court in Ankleshwar Taluka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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