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TMI Blog2008 (7) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... DENT and RAKESH KUMAR, MEMBER (T) P.C.Jain, Advocate for the appellant. A.K.Madan, Authorised Departmental Representative (DR) for the respondent. [Order Per Rakesh Kumar Member (T)- 1. The point of dispute in this appeal is as to whether during the period of dispute i.e. from 1.4.2000 to 31.3.2004, the appellants were acting as Rent-a-Cab operator, as defined under Section 65(91) of the Finance Act,1994 and hence attracting service tax under Section 66 read with Section 65(105)(O) of the Finance Act, as contended by the Revenue or their activity was outside the purview of Rent-a-Cab operator scheme, as claimed by the Appellant. According to the Appellant, they were engaged only in giving their cabs on hire to their clie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case, the appellant had given their vehicle on hire to ONGC and the charges for the same were on kilometer basis. The appellants were not giving their vehicle to their clients on rent. (2) The Tribunal in the case of Kuldip Singh Gill vs. CCE, Jalandhar reported in 2006(3)STR.689 has held that when the transport operator, as per contract with Indian Oil Corpn., was not renting out any stipulated number of vehicles to the IOC but was being paid for trips to various places and during those trips, the vehicles continued to be with transport operator and the transport operator was paid for each trip depending upon the distance, time, etc. as per rate sheet, this activity of the transport operator would not be covered by the ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch, as in that case, it had been found that the appellant had not produced any evidence to suggest that the cars were being actually hired by the customers and not rented. (6) In this case the total service tax demand of Rs.6,58,403/- has been made by two show cause notices service tax demand of Rs.1,21,511/- by show cause notice dt.8.12.04 for period from 1.4.2000 to 31.3.2004 and service tax demand of Rs.2,36,832/- for period from 1.4.2000 to 31.3.03 by show cause notice dt.2.2.05. Both the show cause notices have been issued by invoking longer limitation period of five years and both of them are time barred, as the Department was very well aware of the activities of the appellant right from Nov-2000. This is clear from the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence between the word 'rent' and the word 'hire' and that the Government's intention is to tax the provider of services which involves hiring/renting of a cab formally for a longer duration. (3) Longer limitation period of five years under proviso to Section 73 (1) has been correctly involved, as no returns had been filed by the Appellant. 3. We have carefully considered the submissions from both the sides. The point of dispute in this case is whether giving cabs on higher on demand basis, for which the charges from the client are made on the basis of per k.m. rate, is covered by the definition of rent-a-cab scheme operator's service, as defined under Section 65 (91) of the Finance Act, 1994. The period of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-a-cab scheme operator' was amended and as per the amended definition, 'rent a cab scheme operator' means any person engaged in the business of renting of cabs. Thus the effect of the amendment was that any person engaged in the business of renting a cab whether or not he has a licence under Rent a cab scheme, 1989, would come under the service tax net. But after this amendment, except for doing away with the licencing requirement, the basic character of the service would not change. From the perusal of rent a cab scheme, 1989 framed by Central Government under Motor Vehicle Act, 1988, it is clear that this scheme involves giving the cabs on rent to a client and during period of renting, the vehicle is at the disposal of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis and he is not in the business of renting of cabs. This point has to be decided by the lower authority after ascertaining the facts, for which, this matter has to be remanded to it. 6. We also find that in this case, the Appellant had informed the department about his activity as early as in November 2000 and there has been some correspondence between the Appellant and the Jurisdictional Assistant Commissioner, on this issue during the period from 2000 to 2004. In view of this, the Appellant cannot be accused of suppression of facts with intent to evade the payment of service tax, even if he did not file the service tax returns. In view of this, only the normal limitation period under Section 73 (1) of the Finance Act, 1944 would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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