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Shri Shyam Kishore Jha V/S CCE & ST, Jaipur - I

    Service Tax Appeals Nos. 57241, 57659 of 2013 (Arising out of the Order-in-Appeal No. 106-107 (RDN) ST/JPR-I/2012 dated 28/06/2012 passed by The Commissioner (Appeals), Central Excise, Jaipur) and Final Order Nos. 50356-50357/2018

    Decided On, 19 January 2018

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, MEMBER

    For Petitioner: Rinki Arora, Advocate And For Respondents: P. Juneja, Authorized Representative (DR)

Judgment Text

1. The appellant filed these appeals against Order-in-Appeal No. 106-107 (RDN) ST/JPR-I/2012 dated 28/06/2012.

2. The appellant is engaged in the rent a cab services, so the services were brought under the levy of service tax. During the material time, the cars were hired out on the requisition being made by such customers as and when the customers required the vehicles for their use. The bills for hiring out the cars were raised on the basis of per kilometers charges for the total distance the cars have been run by

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the customers. Being aggrieved from the order of Commissioner (Appeals), the appellant is before us.

3. Ms. Rinki Arora, the learned Counsel submits that it is a just merely transportation on hire basis. She relied ratio on the following cases:-

(i) Rahul Travels vs. CCE, Nagpur/Pune - III : 2017 (47) S.T.R. 332 (Tri. - Mumbai);

(ii) CCE, Nagpur vs. P.B. Bobde : 2015 (40) S.T.R. 953 (Tri. - Mumbai);

(iii) CCE vs. Sachin Malhotra : 2015 (37) S.T.R. 684 (Uttarakhand); and

(iv) Tribunal's decision in Chaturvedi Travels and Tours vs. CCE & ST, Indore vide final order No. ST/53969 of 2017 dated 15/06/2017.

4. After hearing both the sides, it appears that w.e.f. 16/10/1998, the definition of rent a cab scheme operator means any person engaged in the business operating cab on rent basis. In the instant case, the learned Counsel was unable to show any contract with the user. She submits that the appellant is collecting hire charges on the basis of kms. The impugned order observed as below:-

14. As regards, leviability of service tax on the services provided by the appellant, I find from the case cited by the appellant that a Cab - operator who provides a cab with driver for going from one place to another on per kilometer basis or on lumpsum amount based on distance is providing transport service, control of vehicle remained with cab operator/driver as such this service is outside the purview of Rent-a-cab Operator service. It is also held in said judgments that Rent-a-Cab Schemed, 1989 framed by Central Government under Motor Vehicles Act, 1988 provides 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 client. The appellant has claimed that they were hiring out the cars against payment on per kilometers basis and there was no time dimension to the operation of the cars at all and the payment of distances traveled by the customers was made to the appellants. The vehicles in question continued to be with them including during the time of their operation by the customers. The customers asked to them to send the cars for making trips on personal errands and they send the cars to the said customers alongwith the driver and the services provided by them was no renting out of cars by leasing the cars to the customers but they had provided only transport service.

15. In this regard I find that appellants have to prove that services provided by them is not classifiable as Rent-a-Cab operator but covered under transport service as cars were hired by them on per kilometer basis or on lumpsum amount based on distance and that control of such vehicles were remained with them. From the record I find that the appellant had never given any evidence documentary or otherwise which proves that they hired the cars on per kilometer basis or on lumpsum amount based on distance and that control of such vehicles were remained with them or with their driver. They did not produce any evidence in this regard, during the investigation, at the time of adjudication or at the appeal stage. In such a circumstances I hold that service provided by the appellant is classifiable as Rent-a-Cab operator and chargeable to service tax under Section 66 of the Finance Act, 1994".

5. We are in agreement with the finding recorded above. Regarding the limitation, it is the submission of the learned Counsel that demand is time barred as there were different interpretations. From the order-in-original, it appears this issue was examined and the following observations were recorded:-

"16. Further, regarding their plea of limitation I find that the appellant had not disclosed the value of remunerated amount that they are not discharging/paying service tax on the remunerated amount to the department despite clear provisions of law on the issue, it is proved beyond any doubt that they had suppressed this fact from the department, with intent to evade payment of service, as providing of taxable service was remain unearthed if searches premises of the appellant was not conducted by the department. As such I hold that they had deliberately attempted to escape from payment of duty therefore provisions of extended period are applicable in the matter".
6. The above findings appears reasonable. In view of above, the appeals are devoid on merit. However, the learned Counsel pleaded for waiver of penalty under Section 80. It is submitted that full service tax liability with interest has been paid before issue of demand notice. We consider the said fact and waive the penalties, by invoking provisions of Section 80. In the result, appeals filed by the appellant are partly allowed.

(Order dictated and pronounced in the open court.