TMI Blog2016 (4) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant at any point of time. Imposition of penalty - Demand for recovery of short paid Service tax - Period involved is 2002-03 to 2006-07 (upto Sept. 2006) - Rent-a-cab services provided under contract upon pro-rata kilometer basis - For the initial period of one year, the duty was calculated on the basis of invoices issued by the Appellant, whereas for the subsequent period, the Service Tax liability was determined on the basis of balance sheet figures as the Appellant failed to produce the relevant invoices on the plea that the same were destroyed in flood. Held that:- the learned Commissioner (Appeals), in the impugned order, after deliberating various pleas of the Appellant, observed that the Chartered Accountant's cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived from their customers, hence a demand notice was issued to them on 03.07.2007 for recovery of short paid Service Tax of ₹ 24,10,096/- with proposal for imposition of penalty and recovery of interest also. On adjudication, the demand was confirmed and penalty was imposed. Aggrieved by the said order, the Appellant filed an appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals), after analyzing the issues raised and evidences on record, upheld the order of the Adjudicating authority. Hence, the present Appeal. 3. The learned Advocate Shri R.C. Saxena, for the Appellant submitted that the demand was confirmed merely on the receipt figures shown in the balance sheets and on the basis of the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finishing Works 2013 (298) ELT 376(Guj.). 5. Per contra, the learned Authorised Representative for the Revenue has submitted that the issue of chargeability of Service Tax under the category rent-a-cab operator service; when the charges are collected per kilometer basis, is no more res integra, in view of the recent judgment of Hon'ble Gujarat High Court in the case of Commissioner of Service Tax Vs Vijay Travels - 2014 (36) STR 513 (Guj.). However, in the present case, the extended period of limitation is rightly invoked and confirmed against the Appellant, as the Appellant had suppressed the correct value received from their customers during the relevant period and the leviability of Service Tax had not been disputed by the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly conceded that the Appellants are eligible to pay 25% of the penalty imposed on compliance of the condition prescribed under Section 78 of Finance Act, 1994. 7. Heard both the sides and perused the record.We have carefully considered the evidences on record, analysed by the learned Commissioner (Appeals) while upholding the order of the Adjudicating authority. The demand had been issued for recovery of the Service Tax short paid by the Appellant in rendering the rent-a-cab operator service during the period 2002-03 to 2006-07 (upto Sept. 2006); the dispute was not on the chargeability of Service Tax. We agree with the contention of the Ld. A.R. for the Revenue that leviability of service tax on rent-a-cab operator service when the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m that the gross receipts shown in the balance sheets include the value of materials supplied to the customers, could not be accepted, as it has no relation to their plea that the figures shown in the balance sheet are inflated for various business purposes. The learned Commissioner(Appeals) in Para 6.4, 7 and 7.1 recorded his conclusion as under:- 6.4 In view of the discussion in Para 6 and its various sub-paras above, I therefore find that the Appellants contention of the income from rent-a-cab business as shown in the Balance Sheet/I.T. Return being inflated is not correct and cannot be accepted. 7. Thus, in the present case, it is clearly established from the Balance Sheets for the years 2002-03 to 2005-06 and the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard in the OIO are sustainable. 9. In the above premises, we do not see any reason to interfere with the specific findings of the learned Commissioner (Appeals). However, we find force in the contention of the learned Advocate that in view of the principle laid down in Krishnaram Dyeing and Finishing Works case(supra), on compliance of the condition of Section 78 of Finance Act, 1994, they would be eligible to pay 25% of the penalty, which has not been objected to by the learned Authorised Representative for the Revenue. 11. In the result, the impugned order is modified to the extent of allowing the benefit to pay 25% of the penalty imposed on fulfillment of the condition prescribed under Section 78 of Finance Act, 1994. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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