LAWS(CE)-2012-12-72

CHANDELA TRAVELS Vs. COMMISSIONER OF CENTRAL EXCISE, NOIDA

Decided On December 17, 2012
Chandela Travels Appellant
V/S
Commissioner Of Central Excise, Noida Respondents

JUDGEMENT

(1.) THE prayer in the application is to dispense with the condition of pre -deposit of Service Tax of Rs. 16,69,456/ - confirmed against the applicant along with imposition of penalty of identical amount on the finding that during the period April, 2000 to September, 2003 the applicant is providing 'rent -a -cab' services and have not deposited the Service Tax.

(2.) After hearing both sides we find that applicant was primarily engaged in providing buses to various companies for carrying their employees from their residence to office and back. The appellants jurisdictional Central Excise officer wrote a letter on 16 -1 -2002 directing the applicant to get themselves registered under the 'tour -operator -services'. The said letter was contested by the applicant by submitting that they do not fall under the said category and there is no requirement for registration. The said letter was written by the applicant on 1 -10 -2002.

(3.) AT this stage, we prima facie agree with the learned advocate that the figures of compensation received by the applicant from their customers for providing services cannot be solely attributable to providing rent -a -cab services in the absence of any documentary evidence that it was the taxis or the cabs which were being put to rent by the appellants. The Revenue has not provided any evidence to show that the appellants were providing such services. Learned DR's contention that it has been asked by the Revenue from the appellant and they have not been able to give any figures for the same, does not prima facie carry much weight inasmuch as the onus lies upon the Revenue to substantiate the allegation made by them. Learned DR refers to the appellant's letter dated 17 -11 -2003 saying that their firm is closed and they have no documents with them also does not advance the Revenue's case inasmuch as they have themselves conducted the searches and resumed all the documents. As such, it was for the Revenue to show that appellant has provided rent -a -cab services and not only the bus services. The said argument also stands rebutted by the learned advocate by submitting that they have approached their client for receipt of documents and whatever they could retrieve from their customers stands placed on record indicating that it was only bus services which they were providing. Apart from the above, we find that demand for the longer period is barred by limitation i.e. for the period April, 2000 to September, 2003, show cause notice was issued in January, 2004. Correspondence exchanged between the Revenue and the appellant clearly show that Revenue was aware of the activity of the appellant right from January, 2002 in which case no suppression or mis -statement could be attributable to the appellant. We also further note that the demand of Service Tax which falls within the period of limitation stands deposited by the appellant to the extent of Rs. 50,766/ - along with interest of Rs. 12,650/ -. As such, considering said deposit of Service Tax which falls within the period of limitation as sufficient deposit for the purpose of Section 35F, we dispense with the condition of pre -deposit of balance amount of Service Tax and entire amount of penalty and stay recovery of the same during the pendency of the appeal. Stay petition is allowed in the above terms.