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TMI Blog2024 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, the ownership remained with the Appellant themselves and thus the service rendered by them is not rent-a-cab service . The Appellant is the owner of the said vehicles and they have not given the possession of the vehicles to ONGC. In renting, the ownership and possession of the vehicle is given to the service recipient, which is not the case here. Thus, it is observed that the service rendered by the appellant in this case is only transportation and not renting. Accordingly, the service rendered by the Appellant is not liable to Service Tax under the category of rent-a-cab service . This view has been held by the Tribunal in the case of SHREE GAYATRI TOURIST BUS SERVICE VERSUS CCE VADODARA [ 2012 (5) TMI 126 - CESTAT, AHMEDABAD [LB] ] where it was held that 'Tribunal in the case of Shree Sai Krishna Travels (2009 (9) TMI 515 - CESTAT, BANGALORE) was considering an identical issue and has held that in this kind of situation, the services rendered by the assessee cannot fall under the category of Rent-a-Cab services, as per the definition enshrined at Section 65 (91) of the Finance Act, 1994.' The demand of service tax confirmed in the impugned order under the catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order, the Appellant has filed this appeal. 5. The Appellant submits that the service provided by them in the instant case is not in the nature of rent-a-cab service due to the following reasons: - (i) From the contractual provisions as stated herein before, it is distinct that ONGC has not guaranteed a minimum turn over, whether daily, monthly, or annually or during the duration of this agreement and the service provider will not be entitled to demand idle charges or minimum charges or any other loss or damages of whatsoever nature against the ONGC for non-utilization for the said vehicles wholly or in part. (ii) The ONGC do not guarantee a minimum mileage work for each vehicle per month nor do they guarantee the minimum number of vehicles that will be utilized per month and no liability whatsoever shall be attached to the ONGC on account thereof. (iii) The ONGC shall pay to the service provider for operation of the said vehicle at the rate as specified in the price schedule attached to page 32 Annexure II of the agreement no. 9010010618 dated 23.09.08 in respect of aforesaid two nos. of 45 seater buses. (iv) As per relevant clause in the agreement, the service provider sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard both sides and perused the appeal documents. 8. We observe that in the present case, the Appellant has rented out two 45-seater buses to M/s. ONGC for transportation of people in the State of Assam and parts of North-Eastern Region. The vehicles were required to be given for 24/12 hour duty and payments were made on the basis of kilometre, duration as well as mileage. We observe that the ownership of the vehicles remained with the Appellant during the period of the contract. The appellant has submitted that in rent-a-cab service, the ownership and possession of the vehicle is temporarily dispossessed from the owner and given to the person who is hiring the said vehicle; however, in this case, the ownership remained with the Appellant themselves and thus the service rendered by them is not rent-a-cab service . 8.1. We have perused the Contract Agreement dated 23.09.2008 signed by the Appellant and M/s. ONGC. Some clauses in the contract which are relevant to the issue on hand are reproduced below: - 5.00 OPERATIONAL REQUIREMENTS: 5.01 Contractor must ensure that the timetable for the services provided by the transport control room or by the authorized user showing departures an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bus should be avoided. Reports of over speeding will lead to removal of driver. 5.10 ONGC reserves the right to direct the Bus to report to any duty place at its discretion. The duty place if required shall be changed and will be binding upon the contractor. 5.11 Contractor's denial or failure in executing the work timely due to any negligence of his employees, improper condition of Bus or on account of any other lapse leading to delay in field operations/duty shall be liable for levy of Liquidated Damages, as per Liquidated Damages clause, for the number of hours of delay, as per the records available in the log sheets. Repetitions of such lapses may lead to termination of contract. 5.12 The duty hours and kilometers run for payments shall be counted from the time the Bus reports for duty at the assigned duty place up to the time and place of release from the place of duty. The Bus will leave the control room only after specific permission is given. 5.14 Fueling of Buses shall be carried out prior to reporting for duty and should be adequate enough for 24 hours of work/500 KM run. 5.16 The Contractor shall make own arrangements for safety and security as well as parking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny written notice shall be liable for Liquidated Damages as per Liquidated Damages clause. 5.29 Contractor will inform ONGC about occurrence of any accident involving his Bus within 24 hours and shall provide substitute after inspection so as to avoid any disruption in field operations. Absence of Bus due to any accident shall not be entitled for any exemptions of liquidated damages, whatsoever, if substitute is not arranged. 5.30 In case of a major accident, rendering the Bus to be completely out of use in future, contractor must notify the same to ONGC, in writing whereupon the accidental Bus shall be inspected by a team of ONGC officers to ascertain the facts. In such circumstances contractor shall be given a period of 30 days to provide another Bus of similar specification from the date of inspection is carried out. No liquidated Damages shall be levied for the non-availability of Bus from the date of notification of accident till above permissible period for placement of another Bus. 5.32 In case the Buses are found to be involved in any theft case/pilferage, the contract may be terminated as per Termination clause of the contract and security deposit/ Performance Bank Guarant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in is in possession of vehicles and is only hiring out the vehicles to ONGC for a stipulated period or as per the agreement. Whether the hiring out of vehicle is for a day or a month does not mean anything, as the said vehicle is still in the possession of the appellant-assessee or his driver during the entire period. I find that the co-ordinate Bench of the Tribunal in the case of Sri Sai Krishna Travels (wherein I was one of the Member) was considering an identical issue and has held that in this kind of situation, the services rendered by the assessee cannot fall under the category of Rent-a-Cab services, as per the definition enshrined in Section 65(91) of the Finance Act, 1994. I also find that the decision relied upon by the learned special counsel for the Revenue in the case of P. Sukumar [2010 (17) S.T.R. 524 (Tri. - Chennai)], Bharat Travel [2010 (20) S.T.R. 646 (Tri. - Ahmd.)] and Express Tours and Travels were rendered by a Single Member Bench while the judgment of Sri Sai Krishna Travels is rendered by a Division Bench. I also find that the judgment of Kuldip Singh Gill was not on an issue which is before me in difference of opinion hence the said judgment may not carry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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