9911796707
TMI Blog2024 (10) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed by him. The impugned order has carefully examined this aspect as well. The liability to tax arises when a rent-a-cab operator provides a vehicle to another person on rent and receives consideration. In M/S. RS. TRAVELS VERSUS CCE, MEERUT [ 2008 (7) TMI 27 - CESTAT NEW DELHI] , the Tribunal, relying on the decision in the case of EXPRESS TOURS TRAVELS PVT. LTD. VERSUS COMMISSIONER OF C. EX., VADODARA [ 2005 (4) TMI 5 - CESTAT, MUMBAI] , held that that the Government's intention, is to tax the provider of a service, which involves hire and renting of a cab formally for a long period. It was further held that the test for ascertaining whether an activity is covered by the entry rent-a-cab operator service is as to whether it involves giving a cab with or without driver to a client for a certain period of time for some consideration, which can be on per hour or per day or per month basis. In the instant case, it is noted that the car had been hired on monthly basis to their clients, as per the Agreements on file. Accordingly, the impugned order is correct in holding that the appellant is liable to service tax in respect of the services rendered by him under the category of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not amount to suppression of facts, and some positive evidence of intent to evade is to be evidenced by the Department. In this regard, the appellant had collected the tax from his client, but did not discharge his liability nor filed any returns. This clearly establishes his intent to evade - the extended period has been rightly invoked in the impugned order. Interest - HELD THAT:- In the case of PRATIBHA PROCESSORS VERSUS UNION OF INDIA [ 1996 (10) TMI 88 - SUPREME COURT] the Supreme Court held that Interest is compensatory in character and is imposed on an assessee who has withheld payment of any tax as and when it is due and payable . Accordingly, the demand of interest in the impugned order is correct. Penalty - HELD THAT:- The penalty imposed under Section 77(2) of the Finance Act, 1994 is upheld. The impugned order is upheld - it is directed that the demand may be recalculated after extending cum duty benefit to the appellant. The penalty equal to the demand under Section 78 of the Act will stand modified to the extent of the revised demand. Appeal allowed by way of remand for calculation of demand. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MS. HEMAMBIKA R. PRIYA, MEMB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed its business in Financial Year 2009-10, by entering into an agreement dated 17.08.2010 with M/s. Mahindra Logistics Ltd. (MLL), for providing cabs on hire basis, to provide transportation services to employees of the clients namely 'M/s. Nokia India Ltd.', 'M/s. Wipro Ltd. (Technology Division)', and 'M/s: Wipro Ltd. (Infotech Division)'. As per the terms of the agreement, the appellant is responsible for providing the driver along with cabs, resultantly the effective control and possession remained with the appellant. Further, the transportation services i.e., pickup and drop facility was provided to employees of the clients at pre-determined fixed schedules. Thus, the appellant was of view that aforesaid service provided by the appellant for the period 01.04.2009 to 30.06.2012 is not taxable as the appellant had provided point to point transportation of passenger services on the demand of the customer and hence the same did not fall under any taxable category. Further, w.e.f. 01.07.2012, the transportation services provided by the appellant was exempted vide entry no. 23(b) of the Notification No. 25/2012-ST dated 20.06.2012. 3.1 Learned Counsel further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) of notification no. 25/2012-st dated 20.06. 2012. In this regard, he drew attention towards entry no. 23(b) of Notification No. 25/2012-ST dated 20.06.2012 as under:- 23. Transport of passengers, with or without accompanied belongings, by- (a) air, embarking from or terminating in an airport located in the state of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, or Tripura or at Bagdogra located in West Bengal; (b) a contract carriage for the transportation of passengers, excluding tourism, conducted tour, charter or hire; or...... 3.4 Learned Counsel further stated that in the instant case, even if the services rendered by the appellant fell under rent-a-cab service, the appellant was entitled to the abatement of 60% under Notification No. 1/2006 dated 01.03.2006. Therefore, even if contention of department is accepted that services provided by the appellant are taxable under Rent a Cab Service , then appellant shall be given the benefit of the abatement of 60% from the gross amount charged and demand shall be calculated accordingly. Further, the Learned Counsel submitted that MLL has already deposited service tax on consideration amounting to Rs. 5,11, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng grounds which had not been raised before the original adjudicating authority, which cannot be permitted without the specific leave of the Court. 4.1 He also relied on the judicial precedents in favour of the Department, viz., Commissioner Of Service Tax Vs. Vijay Travels [2014 (36) S.T.R. 513 (Guj.)] Anil Kumar Agnihotri vs. Commissioner of Central Excise, Kanpur 2018 (10) G.S.T.L. 288 (All.) Gopal Singh Chundawat vs. Commissioner of Central Excise, Jaipur 2012 (25) S.T.R. 86 (Tri.-Del.) Anil Engineering vs. Commissioner of Central Excise, Jaipur 2014 (34) S.T.R. 446 (Tri.-Del.) S.K. Kareemun vs. Commissioner Hyderabad-III 2016 (42) S.T.R. 988 (Tri.-Del.) M. Venkata Reddy v. Commissioner 2016 (44) S.T.R. J279(S.C.) Carzonrent (India) Pvt. Ltd. vs. Commissioner of Service Tax 2017 (50) S.T.R. 172 (Tri.-Del.) Commissioner of C.Ex, Chandigarh vs Kuldeep Singh Gill 2010(18) STR 708(P H) 5. We have heard the learned Counsel for the appellant and the Ld. Authorised Representative for the Department. We have also perused the case records. 6. We find that Ld. Counsel has contended that the service provided by them is not liable to be classified as rent a cab service, and had instead pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out a vehicle to a hirer, where the vehicle was stationed at the premises of the hirer and was under his exclusive control, the tax liability under rent-a-cab service would arise. In R.S. Travels [2008 12 S.T.R. 27 (Tri-Del)], the Tribunal, relying on the decision in the case of Express Tours and Travels Pvt. Ltd. [2006 (3) S.T.R. 664 (Tri.)], held that that the Government's intention, is to tax the provider of a service, which involves hire and renting of a cab formally for a long period. It was further held that the test for ascertaining whether an activity is covered by the entry rent-a-cab operator service is as to whether it involves giving a cab with or without driver to a client for a certain period of time for some consideration, which can be on per hour or per day or per month basis. In the instant case, it is noted that the car had been hired on monthly basis to their clients, as per the Agreements on file. Accordingly, we hold that the impugned order is correct in holding that the appellant is liable to service tax in respect of the services rendered by him under the category of rent-a-cab services . We find that the judgments relied upon by the learned counsel h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of motor cabs, a taximeter shall be fitted and maintained in proper working order, if prescribed 8.1 A bare perusal of the above makes it clear that the RTA issues a special permit to the vehicle for operation as Contract Carriage. Therefore, in order to be eligible for the exemption under the said Notification, the appellant should satisfy the Contract Carriage conditions as enumerated above. The other conditions require the vehicles to ply in a specific route only, specified fare table is to be exhibited in the vehicle, a taximeter should be fixed etc. In the absence of any such compliance to the requirements stated above, the appellant cannot be considered eligible for the exemption as claimed by them. 9. The Ld Counsel has submitted that they are eligible for abatement under Notification no. 1/2006 dated 01.03.2006, as they had not availed any Cenvat Credit and the benefit of Notification No. 1/2003-ST dated 20.06.2003 was not availed by them. We find that this contention of the appellant has been rejected by the adjudicating authority as no evidence had been submitted by them in this regard. In view of the same, we find no infirmity in the impugned order. 10. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text, in the case of Bhagwati Caterers Pvt Ltd vs CST, Ahmedabad [2014-TIOL-259-CESTAT-AHM] it was held that by recovering the Service Tax from their service recipients and not paying the same to the Dept. has to be considered as evasion of Service Tax with intention to evade when no periodical returns were filed. Accordingly, we hold that the extended period has been rightly invoked in the impugned order. 13. As regards the submissions regarding payment of interest, we note that in the case of Pratibha Processors v. Union of India 1996 (88) E.L.T. 12 (S.C.)- the Supreme Court held that Interest is compensatory in character and is imposed on an assessee who has withheld payment of any tax as and when it is due and payable . Accordingly, we hold that the demand of interest in the impugned order is correct. 14. Consequently, we uphold the penalty imposed under Section 77(2) of the Finance Act, 1994. 15. In view of the discussions above, we uphold the impugned order. However, we direct that the demand may be recalculated after extending cum duty benefit to the appellant. The penalty equal to the demand under Section 78 of the Act will stand modified to the extent of the revised demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
