9911796707
TMI Blog2013 (7) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... als 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 the taxable service under Section 65 (105)(O) read with Section 65(91); 65(20); 65(70); 65(71) and 65(72) of the Finance Act 1994 (of the Act); had failed to obtain registration as service provider under the Act; failed to file returns, had suppressed taxable income and thereby rendered himself liable to the charge of tax, interest and specified penalties. (b) After receipt of the assessee's response and following the due process of law, the adjudication order, dated 9.9.2004 was passed confirming service tax liability of Rs.5,12,040/-; specified and applicable interest; penalty of Rs.10,24,080/- under Section 78; penalty of Rs.2,57,700/- under Section 76; penalty of Rs.500/- under Section 75A; and penalty of Rs.1000/- for each return required to be filed by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 65 (91) defines the expression "Rent-a-cab-scheme operator" to mean any person engaged in the business of renting of cabs. Section 65 (20) defines "cab" to mean a motor cab, maxi cab or any motor vehicle constructed or adapted to carry more than 12 passengers, excluding the driver, for hire or reward. Sub-sections (70), (71) & (72) of Section 65 define the expressions "motor cab", "maxicab" and "motor car", with reference to the meanings assigned to these expressions in the specified clauses of Section 2 of the Motor Vehicles Act, 1988. Section 65(73) defines "motor vehicle" as having the meaning assigned to the expression in Section 2 (28) of the 1988 Act. 7. Section 65(105)(o) delineates the relevant chargeable service as any service provided or to be prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contention which is relevant to the appeals before us as well, was repelled by the Madras High Court by observing that the unamended definition of rent-a-cab operator scheme under Section 65 (32) of the Act (as the provision then was ) did require a rent-a-cab operator to be holder of a licence under the rent-a-cab-scheme, 1989 framed by the Central Government under the 1988 Act. The provision was later amended and the requirement of licence under 1989 scheme was excised from the definition. Thereafter a licence under the 1989 Scheme was no longer required, to fall within the definition of the expression 'rent-a-cab-operator scheme'. The Madras High Court proceeded to hold that if a person plies a motor cab or maxi cab, such service becomes a taxable service within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment 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 judgment of the Tribunal in K.S. Gill and the Tribunal's view in K. S. Gill has suffered plenary eclipse on its reversal by Punjab & Haryana High Court, vide the judgment reported in 2010 (18) STR 708 (P & H), R.S. Travels is denuded of its precedential authority. 15. In C.C.E., Rohtak vs. Miglani Taxi Service reported in 2009 (15) STR 566, this Tribunal following the decision in R.S. Travels concluded in favour of the assessee and rejected Revenue's appeal. For the reasons alike as recorded by us in the context of the decision of this Tribunal in R.S. Travels, the judgment of Miglani Taxi Service is no longer good law. 16. Ahmedabad Bench of Tribunal in Vijay Travels vs. C.S.T., Ahmedabad reported in 2011 (33) STR 484 followed the decisions of this Tribunal in K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rine 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 Ongc Land Loosers Travellers Co-operate. Vs. C.C.E., Surat II reported in 2012 INDLAW GUJ 211 to buttress the contention that since the assesses were under a misconception that they were not liable to the charge of service tax and such misconception was also shared by the recipient of the service - GAIL, a public sector organization, an Instrumentality of the State; and since failure to obtain registration under provisions of the Act proceeded under such belief and such misconception had led to the failure to file periodic returns and remit the tax, consistent with their liability under the provisions of the Act, no penalty ought to be levied. The appellant (before the Gujarat High Court) was renting cabs to ONGC but failed to get itself registered under provisions of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
