TMI Blog2010 (4) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... he Finance Act - , if the vehicle is used for providing transport service (as in the present case), then it will amount to providing taxable service under the Act and the respondent-firm was liable to pay service tax. - transport service provided by the respondent-firm to the IOC was a taxable service, the Tribunal was not correct in taking the contrary view and all the questions raised in this appeal are answered in favour of the revenue and against the assessee – decided in favor of revenue. - 90 of 2006 - - - Dated:- 23-4-2010 - CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Kamal Sehgal, Senior Standing Counsel for the appellant. Mr.Jagmohan Bansal, Advocate (amicus curiae). Mehinder Singh Sullar, J. The matrix of the facts, culminating in the commencement of, relevant for disposal of present appeal filed by the revenue and emanating from the record, is that the respondent-firm M/s Kuldeep Singh Gill was dealing in transport business. It provided the transport service to M/s Indian Oil Corporation, Suchipind, Jalandhar (for short IOC ) during the relevant period. The revenue claimed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) and filed the present appeal, which was admitted to consider the following substantial questions of law:- A. Whether the matador rented by the Respondent in the present case, squarely falls within the definition of 'Cab' as per Section 65 (20) of the Finance Act, 1994? B. Whether the Ld. Tribunal is correct in holding that there was no renting out of cabs as the vehicles continued to be with the operator and moreover when the Rent a Cab Scheme Operator Services under the Finance Act, 1994 does not require ownership of the vehicle? C. Whether in the facts and circumstances of the case, the use of matador by the Respondent amounted to a transport service or not especially when the matador was exclusively at the command of M/s Indian Oil Corporation? D. Whether the services provided by the Respondent are covered under the definition of Rent-a-Cab Scheme Operator provided under Section 65 (59) of Finance Act, 1994? That is how, we are seized of the matter. 6. Assailing the impugned order (Annexure A3), the learned counsel for the revenue has contended with some amount of vehemence that the transport service provided by the respondent-firm to the IOC wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val contentions of the learned counsel for the parties, after considering the record in relation to legal provisions, we are of the considered opinion that the service tax is leviable to such transport service. 12. Section 66 of the Act postulates that on and from the commencement of this Chapter, there shall be charged a tax (hereinafter referred to as service tax) at the rate depicted therein of the taxable services provided to any person by the person responsible for collecting the service tax. The method of calculation of valuation of taxable services has been provided under section 67 of the Act. 13. Sequelly, Section 65 of the Act posits that a person responsible for CEA No.90 of 2006 4 collecting the service tax means a person, who is required to collect service tax or is required to pay any other sum of money and includes every person in respect of whom any proceedings under this Chapter have been taken, whereas taxable service means, any service provided (n) to any person, by a tour operator in relation to a tour and (o) to any person, by a rent-a-cab scheme operator in relation to the renting of a cab. 14. Likewise, section 65 of the Act defines tour to mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the appellant do not come to the rescue. As such since contravention of statutory provisions by the appellant stand proved, penalty action against the appellant is justified. However, I note that section 76 of the Act at the relevant time provided for a minimum penalty of Rs.100/- per day and a maximum penalty of Rs.200/- per day subject to an upper ceiling of an amount equivalent to service tax not paid. I further note that service tax involved in this case is Rs.93425/-. Thus overlooking at the facts of the case and also taking into account the relevant statutory provisions, I find that imposition of penalty amounting to Rs.93425/- by the Adjudicating Authority is legally valid and justified. In view of foregoing Order-in-Original no.52/DC/ST/2001 dated 31.12.2001 is upheld and appeal filed by the appellant is dismissed. Appeal dismissed. 17. In other words, the Commissioner (Appeals) has recorded valid reasons but the Tribunal has just ignored the legal position, mainly on the ground that the cabs were not leased out by the respondent for any interval of time for use by the IOC according to its discretion and service tax is not imposeable. Here, to us, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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