2012 (6) TMI 457

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....nt a cab scheme operator's service taxable under Section 65 (105) (o) readwith Section 65 (76) of the Finance Act, 1994. Since the appellant were not paying any tax and were not filing any return, a show cause notice dated 15/10/07 was issued to them for demand of the service tax amounting to Rs.1,76,220/- alongwith interest, chargeable on the amount received for the service provided during the period from February 2004 to 31/3/05 and also for imposition of penalty on them under Section 76, 77 and 78 of the Finance Act, 1994. The show cause notice was adjudicated by the Deputy Commissioner, Central Excise, Udaipur vide order-in-original dated 31/3/09 by which the service tax demand, as made in the show cause notice was confirmed alongwith i....

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....t pre-determined rate is transport service and the same is not covered by the definition of rent a cab operator's service, as given in Section 65 (76) of Finance Act, 1994 [now Section 65 (91) ], that in this case the vehicles are not rented to RSMML and there is no time dimension to the operation of the vehicle and payment was for the outstation travel, that Tribunal in the case of P. Sugumar vs. CCE, Pondicherry reported in 2008 (10) S.T.R. 56 (Tri. - Chennai), while deciding stay application has held that providing vehicles as and when required on the charges on the distance basis is not rent a cab operator service, that in any case the demand is wholly time barred, as the show cause notice for demanding the service tax for the period fr....

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....3. Even the Deputy Commissioner in para 12 of the order-in-original has mentioned that earlier a show cause notice dated 31/8/04 had been issued for the earlier period, but still the appellant wilfully ignored the payment of service tax and neither paid the service tax for the later period nor submitted the ST-3 returns. In our view, when the activity of the appellant was fully known to the department and earlier a show cause notice dated 31/8/04 had been issued for demanding service tax for the period from 1/4/02 to 31/12/03, the department cannot accuse the appellant of suppression of fact for the subsequent period, even if they did not pay the service tax or filed the returns, as the department could have searched their premises and obta....