Shri Janardan J. Raval vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIO-19/COMMR/2008 dated 29.02.2008, passed by Commissioner (Appeals) Central Excise & Service Tax, Ahmedabad)

Shri Janardan J. Raval : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)

Represented by :

For Appellant (s) : Shri Vipul Khandar, Chartered Accountant

For Respondent (s) : Shri Alok Srivastava, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

Date of Hearing / Decision : 12.08.2015

ORDER No. A/11211/2015 Dated 12.08.2015

Per : Mr. P.K. Das;

Heard both sides and perused the records.

2. The appellants were engaged in the business of Rent-a-Cab service and supplying of Cabs to various organisations on contract basis. A show cause notice dated 24.10.2007 was issued proposing demand of service tax under the category of Rent-a-Cab services and Tour Operator services, for the period from 2002-03 to 2006-07. The appellant had not disputed the demand of tax alongwith interest against the Rent-a-Cab services, which they have paid before issuance of show cause notice. The appellant contested the demand of service tax on Tour Operator services. By the impugned order, the adjudicating authority confirmed the demand of service tax under both the categories, alongwith interest and imposed penalties.

3. On perusal of the records, we find that the appellants were providing buses on rental basis to its various clients for transportation of their employees, on contract basis. The appellant submitted Contract Carriage Permit issued by the Motor Vehicle authorities. This fact was not disputed. So, the demand of service tax under the Tour Operator services can not be sustained. This issue is no more res-integra in view of the various decisions, as under:-

(a) Shree Gayatri Tourist Bus Service vs. CCE, Vadodara  2013 (29) STR 499 (Tri. Ahmd.)

(b) Capricorn Transways Pvt. Limited vs. CCE, Raigad  2015 (37) STR 1027 (Tri. Mum.)

(c) Commissioner vs. Ashok Travels  2011 (22) STR J34 (Guj.)

4. The learned Chartered Accountant submits that in the case of demand of Rent-a-Cab, the appellant paid the service tax suo-moto before issue of the show cause notice and therefore, no penalty should be imposed. We find that appellant paid the tax after detection by the Central Excise officer in 2007, for the period 2002 to 2007. On a query from the Bench, the learned Counsel submits that the appellants charged the service tax on the gross amounts, but they paid the tax after deduction the tax on TDS amount which has not been deposited with the Government. Therefore, the penal provisions should be followed. After considering the submissions of both sides, we find that imposition of penalty under Section 78 of the Finance Act, 1994 is sufficient and therefore, other penalties would be liable to be set-aside. Learned Chartered Accountant also submits that the adjudicating authority had not given option to pay penalty under Section 78 of the Act of 25% of the tax alongwith interest and penalty within 30 days.

5. In view of the above discussions, we set-aside the demand of tax alongwith interest and penalty on Tour Operator services. The demand of service tax on Rent-a-Cab service alongwith interest and penalty under Section 78 of the Finance Act, 1994 is upheld and other penalties are set-aside. The appellant is given option to pay penalty 25% of the tax alongwith entire amount of tax and interest within 30days from the date of communication of this order, under Section 11AC of the Central Excise Act, 1944, read with Section 78 of the Finance Act, 1994.

6. Appeal filed by the appellant is disposed of in above terms.

(Dictated and pronounced in the Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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