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TMI Blog2024 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... between them and ONGC, the Appellant has to provide the buses for transportation against payment on per kilometre basis. The agreement was for hiring of vehicles and payment was on the basis of time, duration as well as mileage. The Appellant was of the view that the service rendered by them would not be liable to Service Tax under the category of 'rent-a-cab service' since the ownership and possession of the vehicles remained with them only during the period of the contract. 2.1. However, the Department was of the view that the Appellant had rendered 'rent-a-cab service' and alleged that the Appellant had not discharged Service Tax on the said services. 3. Accordingly, a Show Cause Notice dated 25.10.2013 was issued to the Appellant inter alia seeking to demand Service Tax of Rs.1,14,806/- [Service Tax of Rs.1,11,462/- + Edu.Cess. of Rs.2229/- + SHE Cess of Rs.1115/-]. 3.1. The said Notice was adjudicated by the ld. adjudicating authority vide the Order-in-Original dated24.06.2014 wherein the demands raised in the Notice have been confirmed, along with interest and penalty. 3.2 On appeal, the Ld. Commissioner (Appeals) has also upheld the demands confirmed in the above Order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, etc. as per price schedule. (vi) The important thing to be noticed is that, the buses were not leased out for any interval of time, for use by ONGC, according to it's discretion. That the Service Tax under the heading does not cover all manner of transport or vehicle hire services. The levy has been defined as any services provided by a rent-a-cab scheme operator in relation to renting of a Bus. In the present case, there was no renting of buses. Instead, transport services were provided. In view of these Service Tax demand on the said assessee is not sustainable during the period in question as mentioned in the demand-cum-show cause notice dated 25.10.2013. The demand for interest and penalty have also to fail since they are dependent on the tax. 5.1. Accordingly, the Appellant contends that the service rendered by them is not rent-a-cab service and thus no Service Tax is payable by them in this regard. 5.2. To support their contention, the Appellant has relied on the decision in the case of Shree Gayatri Tourist Bus Service v. Commissioner of Central Excise, Vadodra [2013 (29) S.T.R. 499 (Tri. - Ahmd.)] wherein a similar issue has been decided in favour of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 12 hrs or 24 hrs as applicable for a minimum of 26 days in a calendar month. Balance days in a month, in excess of 26 days shall be "OFF-Days", meant for maintenance/repairs. These "OFF DAYS" shall be availed by the contractor, only after prior permission of Head of Logistics or user group, which shall normally be spread as ONE DAY PER WEEK or MAXIMUM TWO DAYS AT A STRETCH. Absence of Bus from the duty without prior permission shall not be adjusted against "OFF DAYS" and will be liable for levy of Liquidated Damages as per LIQUIDATED DAMAGES CLAUSE. 5.06 The 12 hours duty Buses may also be required to work beyond normal working of 12 hours, for operational requirements, for which extra payment, under the name of OT, shall be made. However this OT charges shall not exceed the difference of standing charges of 24 hrs. duty and 12 hrs. duty. 5.07 Availability of Bus in a month should not be less than 26 days. If over a period of 3 months any Bus remains available for less than 26 days, then the Bus service will be considered as unsatisfactory and it may lead to termination of the contract. 5.08 Contractors must provide services as per daily instructions given by the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Contractor shall ensure that his driver is deployed on duty after adequate rest to avoid accidents due to over fatigue. 5.20 The crew deputed by the contractor shall behave properly with ONGC's officers/staffs and shall maintain punctuality and discipline. 5.21 No "Unauthorized passengers will be allowed to travel in the Buses along with ONGC personnel 5.22 Contractor or his representative shall abide by usual and special rules regarding safety and security measures while on duty with ONGC as per Mines act or as per direction of Safety Representative of ONGC at work site. The vehicles will be having spark arresters. In case of any default, ONGC reserves the right to a) Ask the driver to remove the Bus/leave the site. In this eventuality ONGC shall recover LD as per Liquidated Clause. b) In case of any damage caused to such violation of safety regulations, ONGC shall recover cost of damages from the Contractor as assessed by ONGC. c) For violation/jeopardizing safety and security of ONGC property and personnel, ONGC reserves the right to terminate the Contract with immediate effect in addition to recovery of LD as per Liquidated Clause. 5.28 A continuous absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of Shree Gayatri Tourist Bus Service v. Commissioner of Central Excise, Vadodra [2013 (29) S.T.R. 499 (Tri. - Ahmd.)]. The relevant paragraphs of the said decision are reproduced below:- "32. I have considered the submissions made at length and perused the records. On perusal of the record, I find that there is no dispute as regards the fact that the assessee had an agreement with ONGC for the purpose of giving vehicles to transport the employees of ONGC to various places. As correctly pointed out by the learned counsel that Member (Judicial) had reproduced various clauses of contract in her differing order in Para 2. On perusal of such clauses, I find that the said agreement is between ONGC and the assessee and is for transportation of personnel and their delegates under the instructions and direction from the officials of ONGC. There are very clear clauses which indicates that the charges that has to be paid to the assessee-appellant has to be based basic distance and any express travelled will upon pro rata kilometres traversed. The clauses also indicate very clearly that the appellant is responsible for maintenance of the vehicles and he is suppose to fill the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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