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2017 (1) TMI 98 - AT - Service TaxLease rental charges for motor vehicles - fleet management fee - non-payment of service tax - sale transaction or provision of service - N/N. 9/04-ST and 1/06-ST - the exact legal nature of the transaction between the appellant and their client has to be understood before arriving at a decision of service tax liability of the consideration received by the appellant - Held that: - the clients were never became owners of the cabs. They can use the cabs as long as they are paying rent to the appellant for such usage. The clients do not possess full effective control of the cabs, which are leased to them by the notices. As recorded by the Original Authority, the appellants do not fulfil the attributes as laid down by the Hon'ble Supreme Court to determine and conclude the transaction to be a deemed sale. As such, we find that the appellants failed to sustain legally their plea regarding non-applicability of the provisions of Service Tax to the transactions of renting of motor cabs and on such consideration received. Inclusion of fleet management charges in the taxable consideration - Held that: - the appellant did not produce any evidence to indicate that the gross amount charged by them is inclusive of service tax payable. In fact the liability to service tax has been contested by the appellant. Hence, in terms of the provisions, it cannot be concluded that the gross amount is inclusive of service tax when no reference has been made to the service tax in the basic documents for realising the consideration. The appellants are liable to service tax as confirmed by the Original Authority. However, the demand shall be restricted to the normal period and the penalty under Section 78 is not sustainable. The benefit of abatement in terms of N/N. 9/04-ST and 1/06-ST shall be allowed on production and verification of supporting documents for fulfilment of the conditions stipulated therein - appeal disposed off - decided partly in favor of appellant.
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