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TMI Blog2018 (5) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the demands and also imposed penalties upon the Appellants. Hence the present appeals. 2. Shri Prasad Paranjape, Ld. Counsel appearing for the Appellants submits that the service provided by the Appellant are not covered under the category of "Rent A cab Scheme". The person engaged in providing such service should be a cab operator and engaged in providing services in relation to renting of cab. The agreement with their customer is of hiring of buses. The control and possession of bus remain with them. He relies upon the judgment of Hon'ble Uttarakhand High Court in case of CCE Vs. Sachin Malhotra 2015 (37) STR 684 and CCE Vs. R.S. Travels 2015 (38) STR 3. He also relied upon judgment in case of S K Kareemum Vs. CCE, Hyderabad - III 2016 (42) STR 988 (TRI), CCE Vs. PB Bobde 2015 (40) STR 953. He also submits that the demand is time bar for the extended period as there is not suppression of facts on the part of the appellants. 3. Shri Rishi Goyal, Ld. Additional Commissioner (AR) appearing for the revenue reiterates the findings of the impugned order. He submits that the services are classifiable under Rent A Cab as held in S.K. Kareemun 2016 (42) STR 988 (TRI). The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not detract from our enquiring into as to what is the transaction, which is actually brought to tax. We are constrained to pose this question and answer this question as what is sought to be taxed is the service in relation to the renting of cabs. So, the most important and crucial element, which we must bear in mind, is, whether there is a business of renting of cabs. Unless there is renting of cabs, there is no question of further enquiring as to the services, which may be rendered therein. In other words, any service, which may be rendered and which does not relate to renting of cabs, would be irrelevant for our consideration. When we consider the matter in the said light, we have no doubt in our minds that the Tribunal has, in this case, correctly propounded the principle that, unless the control of 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. Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -a-cab scheme, the hirer is endowed with the freedom to take the vehicle, wherever he wishes, and he is only obliged to keep the holder of the licence informed of his movements from time to time. When a person chooses to hire a car, which is offered on the strength of a permit issued by the Motor Vehicles Department, then the owner of the vehicle, who may or may not be the driver, will offer his service while retaining the control and possession of the vehicle with himself. The customer is merely 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and they are remunerated on the basis of kilometer run only. The above judgment of Hon'ble High Court irrespective of the fact whether the incidence involved is prior or post 01.06.2007 lays down the principle as to what would be difference between hiring and renting. In view of the facts in the present case that the possession and control of the vehicle has remained with the Appellant and hence cannot be termed as renting of cab/ bus. In case of Rahul Travels Vs. CCE 2017 (47) STR 332, the tribunal held as under : "5. We have heard the learned Counsels appearing for the different vehicle owners and the learned Authorised Representatives appearing for Revenue in the different cases. Except in the matter of M/s. Deepak Transport Bus Service which is for the period from June, 2007 to December, 2008, all other disputes pertain to the period prior to March, 2006. Our attention was drawn to the decision of this Bench of the Tribunal in Commissioner of Central Excise, Nagpur v. P.B. Bobde [2015 (40) S.T.R. 953 (Tri.-Mumbai)] which, relying upon the decision of the Hon'ble High Court of Uttarakhand in Commissioner of Customs & Central Excise v. Sachin Malhotra [2015 (37) S.T.R. 684 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 customer merely makes use of the vehicle by travelling in the vehicle on the basis of a contract that he will pay the requisite hire charges for the period he uses the vehicle. Unlike the same, in the case of rent-a-cab, as is provided in the Motor Vehicles Act, the person is enabled to take the vehicle with him wherever he pleases, subject, no doubt, to the terms of the contract between the parties and he uses the vehicle as his own subject to his paying the rent. Though both, rent and hire, may, in a different context, have the same connotation; in the context of rent-a-cab scheme and hiring, we are of the view that they signify two different transactions. What the lawgiver has chosen fit to tax by way of imposition of Service Tax is only transaction relating to business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the vehicles and the aspect considered In Re : Sachin Malhotra was not before the Tribunal in the latter matter. 9. For the above reasons, we find no merit in the appeals of Revenue and dismiss them. We find in favour of M/s. Rahul Travels, M/s. Anay Tours & Travels and M/s. Deepak Transport Bus Service and set aside the orders impugned in their appeals." 6. We find that above order of the Tribunal on the issue of hiring of buses was based upon the interpretation given by the Hon'ble High Court in case of Sachin Mehrotra supra. It rightly held that the aspect considered in Sachin Mehrotra case was not before the Hon'ble Tribunal in S K Kareemum 2016 (42) S.T.R. 988 (Tri. - Bang.). Further the Tribunal in case of CCE Vs. P.B. Bobde 2015 (40) STR 953 followed the decision of Sachin Mehrotra case supra and thus it cannot be said that the tribunal judgment in case of S K Kareemun was not considered by the Tribunal in case of Rahul Travels. Thus in view of these two judgments of the Tribunal we are of the view that the service in question would not be covered under the category of "Rent A cab" Services. 7. The Appellant has also pleaded that the portion of demands is time barred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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