Commissioner, Customs & Central Excise vs R.S. Travels

K.M. Joseph, C.J.—The question of law, which is raised in this Appeal by the Commissioner, Customs & Central Excise, Meerut-I, relates to the taxability of the respondent to service tax on the basis that services were being rendered under the rent-a-cab scheme. This question has been considered by us in our common judgment in Central Excise Appeal No. 1 of 2011 and connected matters. By our judgment dated 06.08.2014, we had confirmed the impugned orders therein and answered the question against the appellant herein. This case was de-linked on the basis of the fact that the respondent/assessee had effected payments and also filed affidavits to the effect that he will be paying the balance of the amount.

We have heard learned counsel for the parties.

Learned counsel for the assessee would point out that the amounts were paid under compulsion. He would also bring to our notice the judgment of the Hon''ble Apex Court in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. Vs. Union of India (UOI) and Others, , wherein the Hon''ble Apex Court held, inter alia, as follows:

"38. At one state, Mr. Sanghi pointed out that in certain bills of entry of Dunlop India Limited, their agents, M/s. Mackinnon, Mackenzie & Co. Private Ltd., gave the I.T.C. item No. 87 with regard to the imported V.P. Latex. This, according to Mr. Sanghi, clearly shows how the appellants themselves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the customs, the appellants'' agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by Counsel. The question is of general importance and must be decided on its merits."

He also drew our attention to the judgment of the Apex Court in the case of Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, , wherein the Apex Court was dealing with the maintainability of the plea for refund and the Court, in short, took the view that in respect of a claim for refund, it would have to be established by the claimant that it has not passed on the burden to the consumer.

After hearing the parties, we also notice that the department has not taken this contention as such.

Article 265 of the Constitution of India mandates that no tax can be levied or collected except as provided by law. Article 265 of the Constitution of India provides as follows:

"265. Taxes not to be imposed save by authority of law.- No tax shall be levied or collected except by authority of law."

In this case, we would think, the fact that the respondent/assessee had made some payments and also made promise to make further payments cannot be used against our refusing to interfere with the impugned order. For the reasons, we have already recorded more elaborately in our common judgment passed in CEXA No. 1 of 2011 and connected case, we have, inter alia, found that when there is only a contract of hire and there is no renting of the cab, there is no question of the assessee being assessed in respect of services rendered in connection with rent-a-cab as there is no renting at all. Following the said judgment, we dismiss the Appeal.