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TMI Blog2019 (3) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of service tax. Moreover, the Department has not produced any cogent evidence to show that there was a positive act of suppression on the part of the appellant. The entire demand has been raised on verification of accounts of the appellant. This shows that nothing was suppressed with any intent to evade payment of service tax - the Show Cause Notice is time-barred - appellant succeeds on the ground of limitation. Appeal allowed - decided in favor of appellant. - Appeal No.: ST/233/2011 - Final Order No. 40529/2019 - Dated:- 18-3-2019 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri. T. Ramesh, Advocate for the Appellant Shri. K. Veerabhadra Reddy, ADC (AR) for the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant and no rent for the vehicle is collected from the customers. That at no point of time have the appellants given their vehicle for rent to any of these customers and that the activity, if any, would fall only under the style of hiring of vehicle. Therefore, the demand of service tax under the category of Rent-a-Cab Operator Services cannot sustain. To support his argument, he relied upon the decision of the Hon ble Uttarakhand High Court in the case of Commissioner of Customs Central Excise Vs. Sachin Malhotra reported in 2015 (37) S.T.R. 684. (Uttarakhand). It is also pointed out by him that the Tribunal in the case of M/s. Wheels Tourists Operator Vs. Commissioner of G.S.T. C.Ex., Chennai reported in 2019 (20) G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged their service tax as they believed that the activity did not fall within the said category of service. Therefore, suppression of facts with intent to evade payment of service tax cannot be alleged to invoke the extended period. The Show Cause Notice was issued on 16.10.2007 for the period from April 2005 to September 2006. The entire demand is therefore time-barred. 3.3.2 It is also submitted by the Ld. Counsel that the Original Authority has imposed penalty of ₹ 6,41,094/- under Section 78 of the Finance Act, 1994, which is more than the equal penalty envisaged under Section 78 ibid and that, in any case, this is not sustainable. 4.1 Ld. AR Shri. K. Veerabhadra Reddy appearing on behalf of the respondent supported the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides and have perused the records. 6. The Ld. Counsel for the appellant has put forward arguments on the ground of limitation. We will first address this issue before entering into the merits of the case. 7.1 As narrated above, the appellant has been contending that their activity would not fall within the levy of service tax net as they were charging the customers on per kilometre basis and there was no renting of the vehicle involved. This issue has been mired in litigation for a long time and there are conflicting decisions also. In M/s. Vijay Travels Vs. C.S.T., Ahmedabad 2010 (19) S.T.R. 671 (Tri. Ahmd.), the Tribunal held that the hiring of a vehicle could not attract levy of service tax. The decision on merits was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra). The Hon ble Allahabad High Court in Anil Kumar Agnihotri (supra) analyzed a similar issue. 7.4 Further, in the case of M/s. Rahul Travels Vs. C.C.E., Nagpur/Pune-III reported in 2017 (47) S.T.R. 332 (Tri. Mum.), the decision in S.K. Kareemun (supra) was distinguished by the Tribunal by observing that hiring of cars and buses as contract carriage on payment based on their usage as per kilometre basis, though possession with repair and maintenance remained with the owner, is not taxable prior to 01.06.2007 either under Rent-a-Cab Service or under Tour Operator Service. 8. Taking into account the fact that there are conflicting decisions on the issue as also the same being interpretational, we are of the opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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