TMI Blog2017 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... if permissible which is left to the ld. Adjudicating authority for examination in the light of the law, considering the argument of the assessee and also subject to production of evidence if any. Time limitation - Held that: - the appellant has collected the taxes but not having paid the same to the treasury, it loses all its right to further argue when its conduct of evasion was patent - However, considering that there was a confusion between the assessee and Revenue due to varied judgment of different High Courts, the levy of penalty is considerable under the section 80 of the Finance Act 1944. Appeal allowed by way of remand. - ST/834 & 823/2011-CU [DB] - ST/A/54098-54099/2017-CU[DB] - Dated:- 14-6-2017 - Mr. D.N. Panda, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) Ms. Rinki Arora, Advocate for the appellant Shri Sanjay Jain, DR for the respondent ORDER Per: D. N. Panda In these two appeals while assessee is in appeal against the service tax demand of ₹ 21,70,985/- for the period from 18.04.2006 to 31.05.2007 and similar such demand of ₹ 20,68,051/- for the period June 2007 to March 2009 followed by interest and pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Putholi, Chittorgarh 298580856 3188601 60886 0 3249487 3 M.s, Hindustan Zinc, Rampur, Agucha, Bhilwara 7044207 308587 6153 0 314740 4 M/s. Hindustan Zinc Ltd. Debari 5855760 295321 0 0 295321 4,54,66,025 39,35,620 69,905 572 40,06,097 4. The assessee submits that Revenue alleged that in so far as the receipts in table at para 13 is concerned, the receipt pertaining to the period June 2007 to 09.05.2008 was not taxed by the Adjudicating Authority. Against which, Revenue is also in appeal. 5. Placing the argument on merit ld. Counsel for the assessee says that the services in relation to rent a cab was sought to be taxed under section 65(105)(o) of the Finance Act 1994 (hereinafter referred to as the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vehicle is made over to the hirer and he is given possession for howsoever short a period, which the contract contemplates, to deal with the vehicle, no doubt subject to the other terms of the contract; there would be no renting. A perusal of Section 75 of the Motor Vehicles Act, 1988 would also fortify us in the view that we have taken. Section 75 reads as follows : 75. Scheme for renting of motor cabs. - (1) the Central Government may by notification in the official Gazette, make a scheme for the purpose of regulating the business of renting of motor cabs or motor cycles to persons desiring to drive either by themselves or through drivers, motor cabs or motor cycles for their own use and for matters connected therewith. (2) A scheme made under sub-section (1) may provide for all or any of the following matters, namely;- (a) licensing of operators under the scheme including grant, renewal and revocation of such licences; (b) form of application and form of licences and the particulars to be contained therein; (c) fee to be paid with the application for such licences; (d) the authorities to which the application shall be made; (e) condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely enabled to make use of the vehicle by travelling in the vehicle. In the case of a passenger, he is expected to pay the metered charges, which is usually collected on the basis of the number of kilometers travelled. These are all matters, which are regulated by the Government. Unlike the said scenario, in the case of a rent-a-cab scheme, as is clear from the very fundamental principle underlying the scheme, it is to give the hirer the freedom to use the vehicle as he pleases, which, undoubtedly, implies that he must have possession and control over the vehicle. This is the fundamental distinction between rent-a-cab and a pure case of hiring. No doubt, the learned counsel for the appellant may be correct in saying that, in the case of rent-a- cab also, there is hiring in the general sense. As we have already noted, the word hire is used even in the rent-a-cab scheme. But, what is of fundamental importance and constitutes the distinguishing feature between rent-a-cab and hiring is that, in the case of hiring , undoubtedly, the owner of the vehicle retains control and possession; he either drives the vehicle himself or employs somebody else to drive the vehicle; and the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of the vehicle by traveling in the vehicle on the basis of a contract that he will pay the requisite hire charges after use of the vehicle. In the case of rent a cab as is provided in the Motor Vehicle Act the person is enabled to take a vehicle with him wherever he pleases, subject to no doubt, to the terms of the contract between the parties and he uses the vehicle as his own subject to paying the rent. Though both renting and hiring may in a different context, have the same connotation; in the context of renting a cab scheme and hiring, they signify two different transactions. Such fundamental concept has not been considered in the judgment by the Hon ble High Court of Punjab Haryana in the case of CCE Chandigarh Vs. Kuldeep Singh Gill 2010-TIOL-436-HC-P-H-ST. Therefore, the law laid down by the Hon ble High Court of Uttarakhand holds the field. 9. Further, the contention of the assessee is that the effective control was all along with the assessee in the present case and there was no freedom given to the recipient of the services. Therefore, the meaning of the term hiring and renting should not be confused. Hon ble High Court of Uttarakhand having said hiring and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count should be reversed. At this juncture assessee says that abatement is available to it. Revenue emphatically submits that when the assessee claims abatement, there cannot be dispute on arise of admitted tax liability, since, when liability arises, abatement can only be granted. Therefore, it is an admitted case of assessee that its tax liability has arisen. Therefore, tax should be levied with interest and penalty. 14. Heard both the sides and perused the records. 15. When the scheme of taxation is looked into, the taxing entry seeks to levy service tax on the service provider in relation to renting of a cab. 16. It is an admitted fact on record that assessee rented its vehicle to the users thereof for transportation of their employees from one place to another as stated by the ld. Adjudicating authority in para 13 14 of the order. There was a consideration followed for such renting of motor vehicle by the appellant. The vehicles rented were under control and possession of the users thereof for their exclusive use under a contract. Whether driver was provided to the user by the license holder of the vehicle is immaterial. No other user other than the recipient of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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