TMI Blog2020 (9) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... of course, not different than services rendered on a contractual basis, providing transport service for fixed amount of periodical return or fare. This was reiterated by Hon ble High Court of Allahabad in the case of ANIL KUMAR AGNIHOTRI VERSUS COMMISSIONER, CENTAL EXCISE KANPUR [ 2018 (1) TMI 171 - ALLAHABAD HIGH COURT] earlier also. The Punjab Haryana High Court was also considering the question as to whether transport service provided by the respondent-firm to the Indian Oil Corporation was liable to service tax or not. The Court, after considering various provisions as also decision of the High Court of Judicature at Madras in the case of SECY. FEDERATION OF BUS-OPERATORS ASSN. OF TN VERSUS UNION OF INDIA [ 2001 (4) TMI 7 - MADRAS HIGH COURT] , applied all vital observations of Madras High Court mutatis mutandis to the case before the High Court. Accordingly, it held that transport service provided to Indian Oil Corporation was the taxable service and it set aside the decision of the Tribunal by upholding the view canvassed by the Revenue. The appellant providing several numbers of vehicles to BSNL etc. on monthly basis against considerations which otherwise are on ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 66 of Finance Act 1994 as the appellant retains the control of the vehicle with himself/driver. It is impressed upon that the charges collected as per km basis is out of the purview of Service Tax Sec-65(105)(O) of the Finance Act 1994 wherein the cab or motor car is not rented out but let-out on hire. Neither the vehicle is same nor the driver. The hirer/service receiver calls for vehicle. There upon, as their requirement, number of vehicles along the driver is sent to the service receiver/BSNL retaining the control of the vehicle with the driver himself. Ld. Counsel relied upon West Bengal and Anr. Vs. V. Kesoram Industries Ltd. Ors. (AIR 2005 SC 1646). It is also submitted that the charging section does not empower the appellant/assessee to collect the service tax forcibly from the service receiver. The respondent should have notified the service receivers to pay the service tax against. It is finally submitted that the Hon ble H.C. of Uttarkhand at Nainital, in Commissioner of Customs Central Excise Vs. Sachin Malhotra has comprehensively dealt with the issue submitted before this Hon ble Court. Case is squarely covered by the Sachin Malhotra s case. 4. Learned DR, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier by the definition of Rent-a-Cab Scheme Operator also get covered by this changed definition. Section 3(42) of the General Clauses Act defines word person as under : person shall include any company or association or body of individuals, whether incorporated or not; A person would be either natural person or juristic person and therefore, it would also include individual, partnership firm, Hindu United Family, company, etc. It would be pertinent to note at this stage the definition of cab which would be vital for determining the taxable service. Prior to 1-6-2007, Section 65(20) of the Finance Act defined Cab as follows : Cab means - (i) a motor cab, or r (ii) a maxi cab, or r (iii) any motor vehicle constructed or adapted to carry more than twelve passengers excluding the driver for hire or reward; Section 65(70) and Section 65(71) assign the same meaning to the definitions of motor cab or maxi cab respectively as given under the Motor Vehicles Act. Definition of motor cab under Section 2(25) of the Motor Vehicles Act is as follow : motorcab means any motor vehicle constructed or adapted to carry not more than six passengers e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to him for a specified purpose. Renting means a usually fixed periodical return, especially, an agreed sum paid at fixed intervals by a person for any use of the property or car. It is also the amount paid by a hirer to the owner for the use of the property or a car. Hiring is also engaging services or wages or other payment. It also amounts to engaging temporary use. It cannot be disputed that both in renting and licensing , de facto possession of the thing is enjoyed. Difference is well carved out under the law wherein both, de jure possession and control is given, but in renting , it is right-in-rem whereas in licensing , it is right-in-persona. When rent-a-cab scheme operator gives the car on rent, de facto possession is, of course, there but, it is not acceptable to uphold that wherever de jure control and possession of the vehicle stands transferred in law from the owner to the person on renting/hiring the service that the service tax is leviable and this is, of course, not different than services rendered on a contractual basis, providing transport service for fixed amount of periodical return or fare. 6. This was reiterated by Hon ble High Court of Allah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f extended period, proper - Sections 65(91), 65(105)(o), 68 and 73(1) of Finance Act, 1994 - Sections 74 and 75 of Motor Vehicles Act, 1988 - Section 35G of Central Excise Act, 1944 as applicable to Service Tax vide Section 83 of Finance Act, 1994. Rent-a-Cab Scheme Operator Service, Scope of, for demand of Service Tax, Rent-a-Cab Scheme was formulated in 1989 in exercise of powers under Section 75(l) of Motor Vehicles Act, 1988 for regulating the business of renting of motor cabs or motorcycles to persons desirous of driving either by themselves or through drivers, motor cabs or motorcycles for their own use or for matters connected therewith. Tax on service was introduced w.e.f. 1-7-1994 so as to bring under tax net those persons rendering specific kinds of services which constituted a major portion of GDP and service provided by a Rent-a-Cab Scheme Operator in relation to renting of a cab was made a taxable service. Thus, any person engaged in renting of cabs has been taken under tax net for purpose of levying Service Tax, such that Rent-a-Cab Scheme Operator is liable to pay Service Tax. Further, when any person carries on continuous activity of renting of a cab, i.e. lettin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame owners of cabs but can only use cabs as long as they are paying rent to assessee for such usage. Clients do not possess full effective control of the cabs, which are leased to them. But appellant is liable to Service Tax in respect of services rendered by it under category of rent-a-cab service.The case relied upon by appellant is not relevant as being prior in time than above discussed law in favour of revenue. In R.S. Travels Vs. Commissioner of Central Excise, Meerut 2008(12) STR 27 it was held when a cab operator provides his cab with a driver to his client on demand for going from one place to another and charges him on per kilometer basis or a lump sum amount on distance, as fixed with the client and control of the vehicle always remains with the cab operator/driver, he is providing transport service and this activity would be outside the purview of the entry - rent-a-cab operator s service . In Kuldeep Singh Gill Vs. Commissioner of Central Excise, Jabalpur reported as 2006(3) STR 689 it was held the contract was clear that the public sector undertaking was not renting out any particular number of vehicles, but, was making payment for operating trips to various ..... X X X X Extracts X X X X X X X X Extracts X X X X
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