Page 157 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] PEARL TRAVELS v. COMMISSIONER OF C. EX. & S.T., DAMAN 243
informing to department amounts to suppression of fact - Extended period of
demand invocable - Section 73 of Finance Act, 1994. [para 9]
Penalty - Simultaneous penalty under Sections 76 and 78 of Finance
Act, 1994 - Sustainability - As held in 2016 (42) S.T.R. 210 (Guj.), simultaneous
penalties as above not imposable - Penalty imposed under Section 76 ibid set
aside retaining penalty under Section 78 of Finance Act, 1994. [para 10]
Appeal partly allowed

CASES CITED
Air Liquide North India Pvt. Ltd. v. Commissioner
— 2017 (4) G.S.T.L. 230 (Tribunal) — Referred ............................................................................ [Para 3]
Commissioner v. Neha Constructions Pvt. Ltd. — 2019 (21) G.S.T.L. 58 (Tribunal) — Referred ... [Para 3]
Commissioner v. Sachin Malhotra — 2015 (37) S.T.R. 684 (Uttarakhand) — Referred .................... [Para 2]
Godfrey Philips India Ltd. — 2005 2 SCC 515 — Referred ................................................................... [Para 3]
Rahul Travels v. Commissioner — 2017 (47) S.T.R. 332 (Tribunal) — Referred ................................ [Para 2]
Raval Trading Company v. Commissioner — 2016 (42) S.T.R. 210 (Guj.) — Relied on ................. [Para 10]
Sana Engineering Company— 2019 (26) G.S.T.L. 210 (Tri. -Chennai) — Referred ........................... [Para 3]
South Gujarat Roofing Tiles Manufactures — 1997 1 SCR 878 — Referred ....................................... [Para 4]
Vijay Travels v. Commissioner — 2015 (38) S.T.R. J425 (S.C.) — Referred .............................. [Paras 3, 5, 6]
REPRESENTED BY : Shri S. Suriyanarayanan, Advocate, for the
Appellant.
Shri K.J. Kinariwala, Assistant Commissioner (AR),
for the Respondent.
[Order per : Ramesh Nair, Member (J)]. - This appeal has been directed
against Order in Appeal dated 25-8-2011 where by the Learned Commissioner
(appeals) upheld the demand of Service Tax on the services namely Rent a Cab
Service and Business Support Service therefore, the present appeal is filed by the
appellant.
2. Shri. S. Suriyanarayanan, Learned Counsel appearing on behalf of
the appellant submits that as regard the demand under Rent a Cab Operator Ser-
vice, the same is not sustainable. He submitted that as per the contract of the ap-
pellant that the service recipient M/s. Welspun were supplying cabs/taxis
owned to them for transportation of its employees and were raising bills based
upon mileage and type of vehicles provided. He submits that it is admitted in the
Show Cause Notice also that the appellant did not charge any Service Tax under
the category of Rent a Cab Operator from M/s. Welspun. He further submits that
they have provided the cars/taxis to M/s. Welspun on kilometer basis. As per
the requirement the car/taxi remained under the ownership of the appellant and
no rent for the vehicle was collected from the customer. Since at no point of time
appellant gave its vehicles to its customers and therefore activity can fall only
under category of hiring of vehicle therefore the confirmation of demand under
the category of rent a cab operator service cannot be upheld on merit until for the
period up to 31-5-2007. He placed reliance on the following case laws.
• Sachin Malhotra - 2015 (37) S.T.R. 684 (Uttarakhand)
• Rahul travels - 2017 (47) S.T.R. 332 (Tri.- Mumbai)
3. He further submits that the demand is time barred as there is no
suppression of facts with intent to evade payment of Service Tax. He submits

GST LAW TIMES  11th June 2020  157