TaxTMI 
TaxTMI 
2024 (10) TMI 566
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....d, Xchanging Technology Services India Pvt. Ltd., etc. for providing transportation services to employees of a client of aforesaid parties namely 'M/s. Nokia India Ltd.', 'M/s. Wipro Ltd. (Technology Division)', and 'M/s. Wipro Ltd. (Infotech Division)'. The agreement entered between appellant and aforesaid parties specifically provides for the provision of transportation service. As per the terms of the agreement, transportation service i.e. pick-up & drop facility was provided to employees on fixed routes at fixed schedules as specified in advance by various clients to the appellant. An enquiry was initiated by the officers of Anti-Evasion Branch of Service Tax Commissionerate, New Delhi. The department observed that during the period 2009-10 to 2013-14. The appellant was engaged in providing "Rent-a-Cab Service" to M/s. MLL. The appellant had charged service tax on invoices issued to their clients but had not deposited the same in government exchequer. Against this, a show cause notice dated 22.10.2014 was issued to the appellant proposing service tax demand of Rs. 1,07,32,835/- along with interest and appropriate penalties. In reply dated 22.10.2014, the....
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....e Appellant. Thus, service tax demand amounting to Rs. 3,46,858/- confirmed based on such assumption is liable to be dropped. 3.2 Learned Counsel further submitted that the appellant had entered into an agreement with MLL for providing cabs on hire basis to provide Transportation of passenger services (Pick-up and drop service) to its clients. As per the terms of agreement, transportation of passenger service was provided to employees of its client Nokia and Wipro on fixed routes at fixed schedules as specified in advance by MLL to the Appellant. Further, the driver of the vehicles is under direct control and supervision of the Appellant, and it is the Appellant that is responsible for complying with all statutory requirements and indemnifying the clients against any losses, if incurred. The invoices raised by the Appellant indicates the fixed charges for providing cabs which further corroborates the contentions of the appellant. Thus, the Department has misinterpreted the services rendered by way of hiring of vehicles/cabs by the Appellant as rent-a-cab service. Therefore, the impugned service tax demand is liable to be dropped on this limited ground alone. The Hon'ble High....
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....ed under litigation i.e., interpretational in nature. Thus, the period 01.04.2009 to 30.09.2012 is barred by limitation. Accordingly, the demand of Rs. 98,07,879/- is liable to be dropped. 3.6 Learned counsel for the appellant further contended that no interest can be charged under Section 75 of the Finance Act, 1994 and the penalty under section 77 of the Act is not leviable as the appellant has not contravened any of the provisions of Act or rules made thereunder. Penalty u/s 78 of the Finance Act, 1994 is not imposable in case where the default has been made by the appellant due to reasonable cause and in the first proviso to section 78, penalty imposed cannot be more than 50% of the service tax demand for the period 2011-12 to 2013-14. Learned Counsel also submitted that the appellant is eligible for cum-tax benefit in terms of Section 67 (2) of the Finance Act, 1994 as demand has been confirmed on gross amount received by the appellant. He prayed that the appeal may be allowed. 4. Learned Authorized Representative for the Department reiterated the findings of the impugned order. He submitted that the Commissioner vide impugned order dated 15.09.2016 had confirmed the ent....
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....scheme operator means any person engaged in the business of renting of cabs." Section 65(20) - "Cab means - (i) a motorcab, or (ii) a maxicab, or (iii) any motor vehicle constructed or adapted to carry more than twelve passengers, excluding the driver, for hire or reward: Provided that the maxicab referred to in sub-clause (ii) or motor vehicle referred to in sub-clause (iii) which is rented for use by an educational body imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre, shall not be included within the meaning of cab." 7. In the instant case, we note that the appellant was renting vehicles viz., Tavera, Indica etc to his clients for their activities which included pick-up and drop facility to their employees. We also note that the consideration received is on kilometre basis. It is also noted that the charges were inclusive of all taxes, insurance etc. The rental for a long period of time such as 11 months. From the clauses of the agreement placed on record, it is clear that the appellant was renting out his cab to his clients and not providing point to point transportation, as claimed by him.....
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....allotted routes for picking up passengers from one place to another. The relevant clause of the Motor Vehicle Act is reproduced below: "74. Grant of contract carriage permit. 1. Subject to the provisions of sub-section (3), a Regional Transport Authority may, on an application made to it under section 73 grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any area not specified in the application. 2. The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-- 1. That the vehicles shall be used only in a specified area or on a specified route or routes; 2. that except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract, may be entered into outside the specified area; 3. the maximum number of passengers and the maximum weight of luggage th....
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....omes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. " In view of the same, we hold that the appellant is not eligible for the exemption under Notification 25/2012-ST dated 20.06.2012. 11. We now take up the submissions of the appellant seeking the benefit of Cum Duty value. A perusal of the sample invoices submitted by the appellant indicates that the value charged is the gross amount. The Agreements with the clients also indicate that the rate was inclusive of all taxes. We observe that in the case of Triveni Udyog v. Commissioner of Central Excise, it was held that for the goods already sold to the customer, it is an accepted principle that the assessee would be entitled to cum-duty benefit as the duty component now cannot be recovered separately from the customers. In other words, the sale price of the goods is to be treated as inclusive of the duty component. Consequently, we hold that the appellant should be given the ....