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TMI Blog2019 (3) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax under the above category for the period from April 2005 to September 2006. Show Cause Notice was issued proposing to demand service tax along with interest and also for imposing penalties. After due process of law, the Original Authority confirmed the demand of Rs. 3,14,262/- along with Education Cess and interest and imposed penalty under Sections 76 and 77 as well as penalty of Rs. 6,41,094/- under Section 78 of the Finance Act, 1994. In appeal, the Commissioner (Appeals) upheld the demand, interest and penalty imposed under Section 78 ibid, but however set aside the penalties imposed under Sections 76 and 77 ibid. Aggrieved, the appellants are now before the Tribunal. 3.1 On behalf of the appellant, Ld. Counsel Shri. T. Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the decision in the case of S.K. Kareemun Vs. Commissioner of C.Ex., Cus. & S.T., Hyderabad-III reported in 2016 (42) S.T.R. 988 (Tri. - Bang.). He submitted that the Tribunal in the said case has distinguished the decision rendered in the case of Sachin Malhotra (supra). However, in paragraph 5.6.2, the Tribunal has observed that the definition of 'Rent-a-Cab Scheme Operator', as it stood prior to 01.06.2007, was based on the definitions in the Motor Vehicles Act. That after the amendment brought forth with effect from 01.06.2007, the said adaptation from the Motor Vehicles Act has been done away with. The period involved in the present appeal is prior to 01.06.2007 and therefore, even if the decision in Sachin Malhotra (supra) has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of levy of service tax. He relied upon the decision in the case of C.S.T. VS. M/s. Vijay Travels reported in 2014 (36) S.T.R. 513 (Guj.) and submitted that the Hon'ble High Court in the said decision had analyzed this issue and concluded that the provisions of the Finance Act do not make a distinction between 'renting' and 'hiring' of a vehicle and that even in the case of hiring of a vehicle, the same would fall within the levy of service tax. 4.2 The decision of the Tribunal in the case of S.K. Kareemun (supra) was relied upon by the Ld. AR to draw our attention to the fact that the decision in Sachin Malhotra (supra) has been distinguished by the Tribunal in the said case. It is argued by him that the Tribunal has held that renting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat, the assessee has filed appeal before the Hon'ble Apex Court as reported in 2015 (38) S.T.R. J425 (S.C.). The said decision has been appealed before the Hon'ble Supreme Court by the Revenue also as reported in 2016 (43) S.T.R. J172 (S.C.). 7.2 In Sachin Malhotra (supra), the Hon'ble High Court of Gujarat held that hiring of a vehicle wherein the consideration is received only on per kilometre basis and the ownership remains with the appellant, the levy of service tax cannot sustain under the category of Rent-a-Cab Services. This decision was followed by the Tribunal in M/s. Wheels Tourists Operator (supra) as well as M/s. PRR Travels (supra). 7.3 The Tribunal in the case of S.K. Kareemun (supra) has held that even in cases whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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