TMI Blog2010 (6) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the appellant cannot be attributed with any mala fide - demand is barred by limitation - allow the appeal on merits as also on limitation - ST/102/2007 & ST/149/2008 - A/649-650/2010-WZB/AHD - Dated:- 3-6-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Devan Parikh, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - Service tax of Rs. 74,10,217/- stands confirmed against the appellant by treating the services provided by them during the period 1-4-01 to 31-3-04 as services of "rent-a-cab". In addition penalty of identical amount stands imposed under Section 78 of the Finance Act, 1994 and of varying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stressed the point that the appellant was not in fact renting a cab to the said M/s. GSEB but was to provide the vehicle, whenever required by them against consideration of payments on the basis of meter reading. This becomes clear from clause-2 of the contract which required the occupant of the vehicle to write down reading of meter at the start of the journey and last meter reading in the register and to bill the same accordingly. As such by relying upon the Tribunal's decision in the case of M/s. Kuldeep Singh Gill v. CCE, Jalandhar reported in 2006 (3) S.T.R. 689 (Tri. - Del.) = 2005 (186) E.L.T. 373 (Tribunal) learned advocate submits that where the transport services are being provided against payment on per kilometer basis and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax with effect from 23-3-2004. The statements of the owner of the firm recorded on two different dates are to the effect that they are operating rent-a-cab service. As such the appellant now cannot take a 'U' turn and contend that the services being provided by them are not rent-a-cab service. 6. In rejoinder learned advocate submits that registration was got done under a belief that the services being provided by them amount to rent-a-cab. The statements were accordingly given. However learned advocate strongly contends that giving statement that the service provided by them amounts to rent-a-cab service cannot bring the service under the said category if otherwise it is proved on the basis of the documents that the service is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le should be made upon it and the date of travel and time should be filled in his own hand writing. The vehicle is to be used on agreed routes except agreed routes and centres, if vehicle run on other route in city or villages, such used vehicle rent should not be paid. (3) Over and above rent amount no tax shall be paid if any loss/damage caused to rented vehicle, no loss could be paid and Board shall not be at all responsible. And see that in Board working there may not be any hindrance/disturbance, immediate arrangement should be made by replacing other vehicle. 9.Further M/s. GSEB had issued following instructions to the appellant vide its letter dated 18-3-95. "1. The user of the vehicle employee/officer should be respons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent than the service being provided by rent-a-cab scheme operator and the same cannot be held to be covered under the said service category. The Commissioner while dealing with the above plea of the appellant has held that the ratio of the above decision is not applicable to the facts of the case in as much as the vehicles in the case of Kuldeep Singh Gill were motor cab and maxi cab and not mini buses or matadors as is the case in the present appeal. We do not appreciate the above distinction being made by the Commissioner on the basis of the type of vehicle used as it is otherwise clear from the ratio of the above judgment that the same is based upon the type of service being provided and not on the type of vehicle being used. The said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.We also note the Tribunal's decision in the case of CCE v. Miglani Taxi Service reported in 2009 (15) S.T.R. 566 (Tri.-Del.) wherein again it was reiterated that vehicles provided with driver for journey to specific destination where the vehicle remains under disposal and control of the tour operator cannot be treated as rent-a-cab service. 12.In view of the above, we agree with the learned advocate that the services being provided by the appellant were not rent-a-cab service so as to confirm service tax on the same. We accordingly set aside the impugned order on merits and allow the appeal. 13. As we have allowed the appeal on merits, the appellant's plea of limitation is only of academic interest. However we note that first show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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