TaxTMI 
TaxTMI 
2010 (6) TMI 358
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....n addition penalty of identical amount stands imposed under Section 78 of the Finance Act, 1994 and of varying amount under other sections. 2. As per facts on record appellant entered into a contract with M/s. Gujarat Secondary Education Board (hereinafter referred to as GSEB) for transportation services at the time of their examination, for transportation of papers/answer sheets, examiners etc. For providing the said services, appellant uses his own cars as also takes them on rent from the other persons. First such tender was approved by M/s. GSEB in 1995 when no service tax was leviable. The same was approved for a period of two years and subsequently extended from time to time. 3. The appellant's firm visited by the officers ....
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.... learned advocate submits that where the transport services are being provided against payment on per kilometer basis and there was no renting of cab, the service cannot be held to be classifiable under "rent-a-cab" service. The said decision was subsequently followed by another Bench of the Tribunal in the case of R.S. Travels v. CCE, Meerut reported in 2008 (12) S.T.R. 27 (Tri.-Del.) where a difference between renting and hiring was made and hiring of the vehicle was held to be not covered under the said service. Learned advocate further submits that though reliance was placed upon the above decisions of the Tribunal, Commissioner has made distinction on flimsy ground by observing that in the case of Kuldeep Singh Gill the vehicle supplie....
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....vice cannot bring the service under the said category if otherwise it is proved on the basis of the documents that the service is not falling under the said category. He submits that the owners were not legally trained persons and they provided the statement as a layman accepting their service to be rent-a-cab service. 7. We agree with the above contention of the learned advocate. Whether a service falls under a particular category or not will depend upon the nature of the service being provided and the legal interpretation of the documents, like contracts, agreements etc. entered by the service provider with their customers. A service will not become a particular service merely on the acceptance of the service provider. 8.On going t....
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....ing other vehicle. 9.Further M/s. GSEB had issued following instructions to the appellant vide its letter dated 18-3-95. "1. The user of the vehicle employee/officer should be responsible to write the meter reading manager and on journey slip signature of vehicle user officer should be obtained in legible writings. 2. Every vehicle journey slip should be kept separately and in journey slip, the use of vehicle, place, date of journey, the departure time of vehicle, and leaving the vehicle and recording to KMs, and obtained note from the officer who use the vehicle and his signatures. And daily note be obtained from zonal officer daily. 3. The ....
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....is the case in the present appeal. We do not appreciate the above distinction being made by the Commissioner on the basis of the type of vehicle used as it is otherwise clear from the ratio of the above judgment that the same is based upon the type of service being provided and not on the type of vehicle being used. The said decision of Kuldeep Singh Gill was subsequently followed by the Tribunal in the case of R.S. Travels v. CCE, Meerut reported in 2008 (12) S.T.R. 27 (Tri.-Del.). For better appreciation we reproduce para 5 of the said judgment. "5 Moreover, what is taxable is the activity of renting of cabs by a rent-a-cab scheme operator. Ordinary meaning of the words "to rent" is allowing the use of something one owns in exchange....
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....rvices being provided by the appellant were not rent-a-cab service so as to confirm service tax on the same. We accordingly set aside the impugned order on merits and allow the appeal. 13. As we have allowed the appeal on merits, the appellant's plea of limitation is only of academic interest. However we note that first show cause notice was issued to the appellant on 20-10-05 for the period 1-4-2000 to 31-3-2001. Subsequently another show cause notice was issued on 31-8-06 for the period 1-4-01 to 31-3-04. Third show cause notice was issued on 19-10-07 for the period 1-4-04 to 31-3-07. The show cause notice with which we are concerned in the present proceedings is 31-8-06. Apart from the fact that first show cause notice was is....