[Order per : Sonia Gokani, J. (Oral)]. - These Tax appeals of the Revenue preferred under Section 35G of the Central Excise Act, 1944 (for short, hereinafter referred to as “The Act”) arise in the similar factual background. As questions of law involved in both these appeals in case of the very assessee-respondent are identical, they both are decided jointly hereinafter.
1.1 M/s. Vijay Travels, respondent herein, is engaged in providing the services of rent-a-cab. Intelligence was gathered by Preventive Officers of Service Tax Department revealing that the assessee-respondent had not been paying the service tax on value of taxable services rendered by them. Rent-a-Cab Scheme Operator Service is made taxable under Section 65 of the Finance Act, 1994 which is amended from time to time. The respondent was also found not to have filed ST-3 returns. The said service provider though engaged in the business of rent-a-cab service from the year 1997, had not discharged the liabilities of service tax.
1.2 It was noted that the service provider had entered into an agreement with Gujarat Secondary Education Board (for short, hereinafter referred to as “GSEB”) for supply of vehicles. The said contract was entered into by the service provider with GSEB for the purpose of transportation of papers/answer sheets, examiners, staff, etc. The service provider also used its own cars and had taken vehicles on rent from other persons as well. It was noticed that service tax registration though was obtained by the respondent under the category of cab service since March 2004, for the period from April 2004-March 2005, April 2005-March 2006 and April 2006-March 2007, the service tax had not been paid.
1.3 The statement of proprietor of service provider had been recorded under Section 14 of the Act on 18-10-2007 who inter alia stated that the firm is engaged in providing light and heavy passengers vehicles such as Ambassador, Tata Sumo, Matador, Swaraj Mazda, Mini Bus, Luxury Bus, Jeep, etc. on rental basis and the major business is with Gujarat Secondary and Higher Secondary Examination Board (for short, hereinafter referred to as “GSHEB”), Gandhinagar, with which the firm entered into agreement for providing services as prescribed therein. It is further stated that the modus adopted while providing such services is that passenger vehicles are provided as per the requirement of GSHEB and invoices would be issued in favour of the Secretary, GSHEB with the details of period of service provided, type of vehicle, distance travelled, rate and amount due in providing such services. The payments are made through cheques in favour of M/s. Vijay Travels, respondent herein. The monthwise details are supplied in respect of rent-a-cab services provided to GSHEB which in a regular course is confirmed by the service provider by counter signature.
1.4 In all, three show cause notices have been issued by the Revenue. The first show cause notice was issued to the respondent on 20-10-2005 for the period 1-4-2000 to 31-3-2001. The second show cause notice, dated 31-8-2006 is for the period 1-4-2001 to 31-3-2004 where demand of service tax is raised by the Revenue for Rs. 74,10,217/- under Section 73(1) read with Section 68 of the Finance Act invoking larger period of limitation of five years with interest and penalty under Sections 75, 76, 77 and 78 of the Finance Act, 1994. The third show cause notice was issued on 19-10-2007 by the Commissioner, Service Tax, Ahmedabad demanding service tax of Rs. 66,22,402/- for the period from 1-4-2004 to 31-3-2007. The second and third show cause notices respectively dated 31-8-2006 and 19-10-2007 are under challenge in Tax Appeal Nos. 25/2011 and 24/2011.
1.5 When first challenged before the Commissioner, Service Tax, it confirmed such demand treating service provided by the respondent-assessee as service of rent-a-cab along with penalty.
1.6 When the order of Commissioner was challenged before the Central Excise and Service Tax Appellate Tribunal (for short, hereinafter referred to as “CESTAT”), vide order dated 3-6-2010 [ (Tri.-Ahmd.)], it set aside the order impugned on merit holding in favour of the respondent-assessee that the service provided by the respondent is not a rent-a-cab service. The Tribunal also confirmed the plea of limitation in favour of the respondent by holding that the levy since was introduced in the year 2000, the issue was not clear. No mala fide could be attributed to the appellant for non-payment.
1.7 Aggrieved by the said decision of the Tribunal, the present Tax Appeals are preferred by the department proposing following identical substantial questions of law in both the matters for our consideration :
“(i) Whether the Hon’ble CESTAT is correct in holding that Rent-a-cab scheme operator does not cover all manner of transport when the vehicles rented by M/s. Vijay Travels, squarely falls within the definition of ‘Cab’ as per Section 65(20) of the Finance Act, 1994?
(ii) Whether the Hon’ble CESTAT is correct in holding that there was no renting out of cabs as the vehicles continued to be with the operator and was paid per trip/kms and vehicles were given on ‘hire’ basis, when the “Rent-a-cab scheme operator services” under the Finance Act, 1944 does not require ownership of vehicle or provides payment of service tax only if the vehicles are given on ‘rent’?
(iii) Whether the Hon’ble CESTAT, WZB, Ahmedabad is right in not following the judicial discipline by issuing orders which are against the law which remains settled by the Hon’ble Supreme Court of India and various other Tribunals?
(iv) Whether the Hon’ble CESTAT violates its jurisdiction and issue orders contrary to the statute?
(v) Whether the Tribunal committed error in interpreting proviso to Section 73(l) of the Finance Act and erred in holding that the show cause notice issued to the assessee was barred by limitation though assessee failed in filing any return or providing information constraining department to issue summons for the information from the assessee by willingly suppressing information from the department?
(vi) Whether the Tribunal committed error in interpreting Sections 76, 77 and 78 of Finance Act by deleting the penalty imposed on the assessee?”
2. Learned counsel Mr. Yogesh Ravani appearing for the department has assailed the order impugned and argued fervently before us that the Tribunal has erred in interpreting the law on the subject. From the plain reading of sub-clause (o) of Section 65(105) of the Finance Act, 1994, ‘rent-a-cab’ service is defined as taxable service under the Statute and artificial distinction made of “renting” and “hiring” of the cab is not sustainable. He further urged that in the definition of “Rent-a-Cab Operator Scheme”, both “renting” and “hiring” of taxi have been included. It was wrongly contended by the respondent-assessee that it had given vehicles on hire to GSEB and the charges for the same were on kilometer basis and their vehicles to GSEB is not on rent. He further argued that no such definition is made in the Statute with regard to either “hiring” or “renting” even if the vehicle operator provides the vehicle with or without driver. Counsel urged that the intention of the Statute is to tax the service providers which would involve both “hiring” and “renting” of a cab for a particular duration. He further urged that the ownership of cab is also not a relevant factor for the purpose of determining service tax under the provisions of the Finance Act and so long as the contractor is engaged in renting out of cab or maxi cab, the service tax is attracted. The question, according to the learned counsel is whether an activity is covered by the entry ‘rent-a-cab’ operator’s services and as to whether it involves giving the cab, with or without the driver, for a certain period on some consideration. He further urged that in post 16-10-1998 period, for the registration under Section 75 of the Motor Vehicles Act, requirement of holding license under the scheme and requirement of holding particular number of vehicles have been dispensed with. Learned counsel urged that while interpreting the Statute, Court may not add anything which was never contemplated by the legislature. Reliance is placed on some of the authorities to quash and set aside the order impugned of the Tribunal. He fervently urged that extended period of limitation would apply in case of the respondent who chose not to pay service tax for all these years.
3. Per contra, learned senior counsel Mr. Deven Parikh appearing for the respondent strenuously and vehemently argued that rent-a-cab operator is required to have license under the Rent-a-Cab Scheme, 1989 and unless it is shown that there is actual renting of a cab, no taxable service could said to have been performed. He further urged that it is a settled principle of interpretation that a taxing statute must be strictly construed. There is no question of any intendment or equity. He further urged that all cabs of any nature are contract carriages for the purpose of Section 74 of the Motor Vehicles Act, 1988 and Section 75 deals with renting of a cab. Sections 74 and 75 both if cover the same operation, there was no need to legislate Section 75. A specific kind of service of car owners to customers is dealt with by Section 75. This is not carrying passengers for fare from one place to another, but, of actually handing over possession of vehicle to a person who wishes to rent it and to drive it himself or through his own driver or to keep it at his disposal. Irregardless of his use, the rental payment is to be made by him. All consequences, responsibility including of accident, damage, etc., would be of a person renting a vehicle. However, in case of ‘hiring’ of a vehicle, an individual would have no responsibility. The passengers are carried for fare and the possession of the vehicle remains with the driver and all responsibilities would be of a car owner.
3.1 Learned counsel further urged that only perusal of the Rent-a-Cab Scheme shows that the same deals with actual renting and is concerned with the business of “renting of a motor cab” as the possession and control of the vehicle is given away and responsibilities are not of a licence holder, but, of the person renting the cab. He reiterated that apart from the conceptual differences between Sections 74 and 75, the difference in language employed in both make it abundantly clear that the taxi driver maintains his own control and legal possession of car and driver. Therefore, it was argued by the learned counsel that under the Finance Act, those persons under the rent-a-cab service are not to be taxed who are normally plying taxis or providing transportation services and operating under Section 74, but, those persons who are doing business of renting of a cab under Section 75 and are licensed thereunder are only targeted under the tax net. The amendment carried in the definition of “Rent-a-cab Operator” with effect from 16-10-1998 by Finance (No. 2) Act of 1998 did away with the requirement of persons being licensed under the Rent-a-Cab scheme. However, it is contended that the definition of “taxable service” and that of “valuation” have been kept as they were earlier. Therefore, according to the learned counsel, it can be deduced that the scope of amendment was not to expand the scope of tax net, but, to iron out creases gathered on account of earlier definition. He further urged that at the time of the presenting the budget, the Finance Minister proposed service tax on new services which also would indicate that there was no intent to tax the persons who carry passengers for a fare and provide transportation services. Learned counsel had also argued that there is difference between “lease” and “license”. In “lease”, insurable interest exists whereas, in the “license”, there is no insurable interest. Under Section 75, when question of renting arises, it necessarily means exclusive possession of the property and in absence of intendment on the part of the legislature, there should be no imposition of tax by stretching the interpretation of the taxing Statute. It is also further urged that the purpose of amendment is not to bring under the net of the service tax the vehicles given on hire, but, to tax only those vehicles which are rented.
3.2 Even the explanatory notes to Clause 119 of the budget, according to the learned counsel, in the context of rent-a-cab scheme operator, does not state that service provided by persons providing transportation services were to be taxed and this amendment was for a limited purpose only and that would surely not meant to change the very basis of the service which is originally sought not to be taxed. Therefore, only such persons who are covered in renting cabs, though not registered under the Scheme, would be covered after the amendment.
3.3 Learned counsel further contended that the principle of contemporaneous exposition is applicable to the present case and it is the consistent view of the department that these services are not subjected to service tax. There is no practice of taxing such cabs and this being a settled position and practice over the years, this could be good aid to interpret the Statute and such cabs cannot be taxed. He relied on the following authorities to substantiate his version :
1. Indian Metals and Ferro Alloys Ltd., Cuttack v. The Collector of Central Excise, Bhubaneshwar [AIR 1991 SC 1028 = (S.C.)]
2. All Gujarat Federation of Tax Consultants and Others v. Central Board of Direct Taxes and Ors. [1995 (214) ITR 276]
3. Harshadkumar Natverlal Dalal v. Commissioner of Wealth-tax, reported in 1996 (219) ITR 592.
4. K.P. Varghese v. Income-tax Officer, Ernakulam & Another, reported in 1981 (13) ITR 597
In case of Indian Metals and Ferro Alloys Ltd. Cuttack (supra), the question before the Supreme Court was whether the manufacturers of pipe, tubes and poles made of iron and steel were liable to pay excise duty under Item 26AA and 68 of the First Schedule of the Central Excise and Salt Act (1 of 1944). For removing possible ambiguity in understanding the language of the relevant statutory instrument, the Court held that the doctrine of contemporaneo expositio can be made use of by administrative authority by holding thus :
“15. It is continued on behalf of the department that this earlier view of the department may be wrong and that it is open to the department to contend now that the poles really do not fall under item 26AA. In any event, it was submitted since the poles were exempted from duty under one notification or other, it was not very material prior to 1-3-1975 to specifically clarify whether the poles would fall under item 26AA or not. This argument proceeds on a misapprehension. The Revenue is not being precluded from putting forward the present contention on grounds of estoppel. The practice of the department in assessing the poles to duty (except in cases where they were exempt as the conditions in the exemption notifications were fulfilled) and the issue of notifications from time to time (the first of which was almost contemporaneous with the insertion of item 26AA) are being relied upon on the doctrine of contemporanea expositio to remove any possible ambiguity in the understanding of the language of the relevant statutory instrument : See Varghese v. ITO, 1982-1 SCR 629 = AIR 1981 SC 1922, State of Tamil Nadu v. Mahi Traders - 1989-1 SCR 445, CCE v. Andhra Sugar Ltd. - 1989 (Supp) 1 SCC 144 and Collector of Central Excise v. Parle Exports P. Ltd. - 1989-1 SCC 345 = AIR 1989 SC 644, Applying the principle of these decisions, that a contemporaneous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expressions used in a statutory instrument, we think the assessee’s contention that this products fall within the purview of Item 26AA should be upheld.”
In case of All Gujarat Federation of Tax Consultants (supra), this Court was deciding, in group of petitions, the validity of the circular issued by the Central Board of Direct Taxes and the question was whether the provision of Section 194C providing for deduction of tax at source applied for payment made by the class of persons who were the members of the petitioner-Federation before the Court. The doctrine of contemporanea expositio was relied upon to remove possible ambiguity in understanding of the language of the relevant statutory instrument. The Court held that contracts for rendering professional services could be regarded as contracts for carrying out any work. The Court also held that a contemporaneous exposition by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument.
In case of Harshadkumar Natverlal Dalal (supra), the question was whether the value of goodwill which was not purchased for a price by the assessee and not a part of the book assets could be included while assessing value of the business under the Wealth Tax when read with Wealth Tax Rules. And, while deciding such a issue, the Court noted that after insertion of Rule 2(c), the prescribed rules were to replace the vagaries of discretion of the Wealth Tax officer of determining the circumstances in which certain adjustments are required to be made and the Board had already issued instructions for maintaining uniformity in this regard. This explanation was held to exposition of the Rule by rule making authority itself.
In case of K.P. Varghese, the Court held thus :
“The onus of establishing that the conditions of taxability are fulfilled is always on the revenue.
A statutory provision must be so construed, if possible, that absurdity and mischief may be avoided. Where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even do some violence to it, so as to achieve the obvious intention of the legislature and produce a rational construction.
Speeches made by the members of the legislature on the floor of the House when the Bill is being debated are inadmissible for the purpose of interpreting the statutory provision but the speech made by the mover of the Bill explaining the reason for its introduction can certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. This is in accord with the recent trend in juristic thought not only in western countries but also in India, that the interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible.”
3.4 According to the respondent, consistently over the years, the Tribunal has taken a view that if the transportation service is provided for transporting passengers on kilometer basis, keeping full control and possession of the vehicle through the driver, the same cannot fall within the concept of renting of a cab. The department has not carried in appeal such matters of other assessees, then it cannot pick and choose and carry in appeal for only some assessees as per its whims as is held in the judgments of the Apex Court rendered in cases of C.C.E., Navi Mumbai v. Amar Bitumen & Allied Products Pvt. Ltd., reported in and Boving Fouress Ltd. v. Commissioner of Central Excise, Chennai, reported in .
In case of Boving Fouress Ltd. (supra), the earlier order of the Tribunal on the identical issue was accepted by the department and the same was not challenged by preferring the appeal before the Court. The Supreme Court having noted that the facts in case of Sulzer Flovel Hydro Ltd. v. Commissioner of Central Excise [] and that of appellant being identical and the department having accepted the principle laid down by the Tribunal and allowed it to become final, it held that the same point in other cases, the department is not entitled to raise and it cannot pick and choose.
It is, therefore, emphasized by the learned counsel that in all earlier cases, if no appeal is filed against the earlier order involving identical issue, the revenue is not entitled to press these appeals involving the same question of law.
He also tried to distinguish the judgment of the Madras High Court rendered in case of Secretary, Federation of Bus-operators Assn T.N. v. UOI, reported in (Mad.) = (Mad.) by emphasizing the said judgment deals with the question of “tour operators” which is wholly different service from rent-a-cab service and that judgment does not deal with the issue as to what constitutes renting of a motor cab. He further urged that in light of the judgment of the Supreme Court rendered in the case reported in 2008 (4) SCC 283 and the judgments of other High Courts (having only persuasive value), this Court may independently decide the issue of rent-a-cab by giving its own reasonings. Counsel urged that the judgment of Punjab and Haryana High Court also does not deal with the said issue and therefore also, that cannot have any binding precedent.
4. Upon hearing both the sides and carefully considering submissions made by the learned counsels in extenso, at the outset, some of the findings of both the authorities for determination of the issue Nos. I and II in question shall need to be discussed. It is to be noted that issue Nos. III and IV being only the limbs of arguments of question Nos. I and II, need no separate discussion.
5. The Commissioner of Income-tax in its order confirmed the demand of service tax under the provisions of Section 73(l) of the Finance Act with interest and imposition of penalty pursuant to both the demand notices. The assessee-respondent had contended that it does not have any vehicle of its ownership and more than 99% vehicles supplied to Gujarat Secondary Education Board were owned by other car owners and respondents acted only as conduits.
The Commissioner held that the ownership of the vehicle has no relevance. When the contract with the GSEB and the assessee-respondent is for providing the vehicles along with driver and when such vehicles have been provided by the assessee by taking from their respective owners, that would not relieve the assessee-respondent from paying the service tax. The actual usage of the vehicle is also not held relevant by the Commissioner for deciding whether it is renting of a cab service or not. The contention of the assessee that this service is only amounting to transport service and not a rent-a-cab service inasmuch as the nature of rout were fixed/scheduled with other conditions and employment of vehicles had not been accepted by the Commissioner.
5.1 It would be relevant to reproduce contractual terms entered into by and between the respondent and GSEB as under :
“(1) To provide/supply the vehicles of Ambassador/Passenger Matador/Swaraj Mazda/Luxury 56 seated vehicles to Board office, whenever it is required at what time and provide vehicle numbers according to Board requirement; so that no disturbance be occurred in examination work upto the financial year completion. But under any circumstances after completion of tender period, after completion upto 3 months’ time you have to provide the vehicles on agreed rates.
(2) Whenever the responsible person officer of Board, Gandhinagar use the vehicle, he should write down reading of meter and last meter reading in register and bill without fail. And first reading of meter, time and date should be written in legible letters and the signature of responsible authority who use vehicle should be made upon it and the date of travel and time should be filled in his own hand writing. The vehicle is to be used on agreed routes except agreed routes and centers, if vehicle run on other route in city or villages, such used vehicle rent should not be paid.
(3) Over and above rent amount to tax shall be paid if any loss/damage caused to rented vehicle, no loss could be paid and Board shall not at all responsible. And see that in Board working there may not be any hindrance/disturbance, immediate arrangement should be made by replacing other vehicle.”
5.2 Instructions provided by the GSEB vide letter dated 18-3-1995 also requires reproduction as under :
“1. The user of the vehicle employee/officer should be responsible to write the meter reading and on journey slip signature of vehicle user officer should be obtained in legible writings.
2. Every vehicle journey slip should be kept separately and in journey slip, the use of vehicle, place, date of journey, the departure time of vehicle, and leaving the vehicle and recording to KMs, and obtaining note from the officer who use the vehicle and his signature. And daily note be obtained from Zonal Officer daily.
3. The vehicle should be insured, along with risk of passengers, and RTO passing should be complete.
4. The allotted vehicles KMs shall be considered from zonal office from which place the vehicle is managed should be considered.
5. Every zonal journey voucher the signature and counter signatures of zonal office/Dist. Education Officer should be done. Except this bill amount will not be paid, which please note.”
5.3 As can be seen from the contract entered into by and between the respondent and GSEB that it was not only for transporting the questions papers and answer sheets from one place to another, but also to provide the vehicles to GSEB as specified by them. On the basis of entire discussion, the Commissioner concluded that the service provided contravenes the provisions of Finance Act, 1994 read with Service Tax Rules, 1994 and respondent are also held to have suppressed the vital facts with an intention to evade the payment of service tax.
6. The Tribunal on the basis of these details, when the order was challenged, held that the vehicle was not given to GSEB for operating under its management. The GSEB was not making payment of any stipulated number of vehicles but for operating the trips to various places where the management of the vehicles continued with the respondent-assessee and payments were made on kilometer basis, no service tax can be levied.
Relying on the decision of Kuldip Singh Gill (supra) [ (Tri.-Del.) = 2005 (286) E.L.T. 373 (Tri.-Del.)], it held that the assessee did not provide any rent-a-cab service under the Rent-a-Cab Scheme and therefore, it cannot be held liable to pay service tax.
It also relied on the decision in case of R.S. Travels (supra) [ (T)], for substantiating its reasonings as under :
“5. Moreover, what is taxable is the activity of renting of a cab by a rent-a-cab scheme operator. Ordinary meaning of the word “to rent” is allowing the use of something one owns in exchange for payment. Therefore the test for ascertaining whether an activity is covered by the entry “rent-a-cab operator’s service” is as to whether it involves giving the cab, with or without driver, to a client for a certain period of time for some consideration, which can be on per hour or per day or per month basis, with a cap on the total run of the vehicle during the period of renting, if the cab operator also provides the fuel, and during the period of renting the vehicle is at the disposal and under the control of the client, he may use it to the maximum extent permissible or even beyond on payment of extra charges or he may not use it at all. However, when a cab operator provides his cab with a driver to his client on demand for going from one place to another and charges him on per kilometer basis or a lump sum amount based on distance as fixed with the client and control of the vehicle always remains with the cab operator/driver, he is providing transport service and this activity would be outside the purview of the entry “rent-a-cab operator’s service.”
7. Thus, from the discussion above as could be noted that the respondent-assessee was providing various passenger vehicles like Ambassador, Swaraj Majda including 56 seated luxury buses to the GSEB for the purpose of its work of examination. It was required of any responsible officer of the Board to note reading of the meter in the register as also in the bill and all other details like date of travel, time were to be furnished and the vehicles would be plied on agreed route. For any damage of the vehicle, the Board took no responsibility. Passing of RTO, the insurance of the vehicle along with risk of passenger and that of 3rd party were the responsibilities of the owner. The assessee was required to provide vehicle along with driver and in the event of any breakage or damage, the replacement of the vehicle also was the responsibility of the assessee.
7.1 It is predominantly contended in such circumstances that such service only amounted to transport service and not a rent-a-cab service. The activity is not covered by the entry of rent-a-cab operator’s service. It is further contended that in renting of the vehicle, such vehicle would be at a disposal and under the control of client and the same can be used to the maximum extent permissible. However here when the cab operator is providing cab with a driver on demand and such vehicles are being plied on fixed rate from one place to another, charging fare per kilometer and when the control of the vehicle continues to remain with the cab operator, issue raised is that this essentially is a transport service which would be outside the purview of service of rent-a-cab operator service.
8. In light of the said factual matrix, before adverting to other factual contentions some of the rival provisions need discussion at this stage. Section 74 of the Motor Vehicles Act provides for grant of contract carriage permit. On application made to the Regional Transport Authority, he can grant a contract carriage permit subject to certain conditions specified in the said provisions itself.
Section 75 of the Motor Vehicles Act provides for scheme for renting of motor cabs. It is for the Central Government by notification in the Official Gazette to make a scheme for regulating the business of renting of motor cab to persons enabling them to drive the vehicles themselves for their own use or through drivers.
8.1 As can be seen from the objects and reasons, the government, in exercise of powers under sub-clause (1) of Section 75 of the Motor Vehicles Act, formulated Rent-a-cab Scheme, 1989 for the purpose of regulating the business of renting of motor cabs or motor cycles to persons desiring to drive either by themselves or through drivers, motor cabs or motor cycles for their own use and for matters connected therewith. Without licence nobody is permitted in the business of renting motor cab. The Licensing Authority, before granting or reviewing the license, is required to take into account various aspects in particular and subject to certain general conditions to be observed by the holder of the licence, the Licensing Authority can permit the licence. The hirers of vehicle also have certain duties and responsibilities under the law.
8.2 Tax on service was introduced with effect from 1st July, 1994. The object of such levy was to bring under the tax net those rendering specified kinds of services which constituted a major portion of Gross Domestic Product (GDP). Gradually, this tax net was widened to include many more services. Under Section 65(48)(o) of the Finance (No. 2) Act, 1994, service provided by a rent-a-cab scheme operator in relation to renting of a cab is included, holding the same to be taxable service. Vital contentions to be adjudged is whether the petitioner gets covered by the Finance Act, 1994 which took within its ambit various services, which includes service provided to any person, by a rent-a-cab scheme operator in relation to renting of a cab? Whether the service provided by the petitioner is “hiring” of the vehicle and nor the “renting” of the cab and thereby, does not get covered under the tax net?
8.3 Section 65(48)(o) of the Act defines “taxable service” as follows :
“taxable service” means any service provided or to be provided to any person, by a rent-a-cab scheme operator in relation to a renting of a cab.”
The words “in relation to” would mean “concerning with” or “pertaining to” and therefore, any service having direct or indirect connection with a specified service needs to be treated “in relation to” that specified service.
Any person engaged in the renting of the cabs has been taken in a tax net for the purpose of levying service tax for rendering such service. In a wide definition made under Section 35(38) of the Finance Act, ‘Rent-a-cab Scheme Operator’ suggests that those who operate in renting of cabs are covered. ‘Cab’ is also defined under Section 65(9) of the Finance Act which means “maxi cab’ or ‘motor cab’ and both ‘maxi cab’ and ‘motor cab’ are defined under Sections 2(25) and 2(22) of the Motor Vehicles Act respectively.
9. In plain terms, it can be said that a rent-a-cab scheme operator is made liable to pay service tax.
Prior to amendment by Finance (No. 2) Act of 1998, under Section 65(32), the definition of “Rent-a-Cab Scheme Operator” was as follow :
“rent-a-cab scheme operator” means a person who is the holder of a licence under the Rent a Cab Scheme, 1988 framed by the Central Government under the Motor Vehicles Act, 1988 (59 of 1988).”
After the amendment “Rent-a-Cab Scheme Operator” is defined under Section 65(76) as follow :
“rent-a-cab scheme operator” means any person engaged in the business of renting of cabs.”
9.1 The revised definition has made much larger the scope of the earlier definition where a person holding licence with minimum cab of 50 number was termed as rent-a-cab scheme operator. Those having less number of vehicles were neither required to obtain license nor liable to pay any service tax. The question, therefore, arises as to whether, consequent upon revision of definition, those persons engaged in the business of rendering specified service and not covered earlier by the definition of “Rent-a-Cab Scheme Operator” also get covered by this changed definition.
10. Section 3(42) of the General Clauses Act defines word “person” as under :
‘“person” shall include any company or association or body of individuals, whether incorporated or not;’
A person would be either natural person or juristic person and therefore, it would also include individual, partnership firm, Hindu United Family, company, etc.
11. It would be pertinent to note at this stage the definition of “cab” which would be vital for determining the taxable service. Prior to 1-6-2007, Section 65(20) of the Finance Act defined “Cab” as follows :
“Cab” means -
(i) a motor cab, or
(ii) a maxi cab, or
(iii) any motor vehicle constructed or adapted to carry more than twelve passengers excluding the driver for hire or reward;”
Section 65(70) and Section 65(71) assign the same meaning to the definitions of “motor cab” or “maxi cab” respectively as given under the Motor Vehicles Act.
Definition of “motor cab” under Section 2(25) of the Motor Vehicles Act is as follow :
‘“motorcab” means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;’
Definition of “maxicab” under Section 2(22) of the Motor Vehicles Act is as follow :
“maxicab” means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers excluding the driver, for hire or reward;
11.1 Therefore, prior to 1-6-2007, any motor cab carrying not more than six passengers excluding driver and any maxi cab carrying more than six passengers but not less than twelve passengers excluding driver were treated as “cab” and renting of such cab would be treated as taxable service. After 1-6-2007, Section 65(20) was substituted which defines the cab as follow :
“Cab” means -
(i) a motor cab, or
(ii) a maxi cab, or
(iii) any motor vehicle constructed or adapted to carry more than twelve passengers excluding the driver for hire or reward;
Provided that the maxi cab 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 center shall not be included within the meaning of cab.”
“Motor vehicle” under Section 2(28) of the Motor Vehicles Act is defined as follow :
“motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimeters].
11.2 In the amended provisions thus, no change has been made as far as “motor cab” is concerned which in all cases when rented out, such renting would be liable as a taxable service. Any motor cab carrying not more than six passengers excluding driver and any maxi cab carrying more than six passengers but not less than twelve passengers excluding driver respectively can be treated as a “cab”, however, exception are carved out by amendment subsequently, whereby those vehicles would be kept out of the purview of the tax if such renting of cab is for the educational purpose other than of course used for commercial training and coaching centers.
12. Corollary to this issue would be as to who can be said to have been engaged in the business of renting of a cab. If a person is in continuous occupation or employment and does not carry out any isolated act or transaction, such conduct and activity would amount to engagement in the business. This Court in case of CIT v. Natwarlal Tribhovandas, reported in (1973) 87 ITR 703, has expressed the word “engaged in”, as follow :
“the expression ‘engaged in’ is a term of various meanings depending on the context in which it is used but ordinarily it is intended to signify continuous occupation or employment; of action as well as of physical participation. However, the term is often employed to denote a present obligation to devote time, attention and efforts to a particular activity, although, for the time being, there may not be active participation or wholesome involvement in such activity.”
Therefore, in ordinary parlance if understood, any person natural or juristic, when carries on continuous activity of renting of a cab, i.e. letting for the use in case of maxi cab or motor vehicle, such renting out of a vehicle would invite taxable service.
13. The revenue has emphasized that the activity carried by the respondent-assessee amounts to renting of a cab and therefore, assessee-respondent would be covered under “Rent-a-Cab Operator Scheme” as amended in the year 1988. However, according to the respondent, order-in-original failed to appreciate the distinction between “renting” and “hiring” of a cab and Tribunal in this case rightly grasped the issue.
13.1 The crucial question, therefore, would be of what would be the meaning of renting of a vehicle and whether the distinction of “renting” and “hiring” of vehicle as contended by the respondent is contemplated by the Statute to exclude later category from tax net?
14. Requirements of rent-a-cab-scheme operator to have minimum 50 numbers of vehicles and also having licence under the law also was done away with by subsequent amendment.
Legislature has not made any distinction between “hiring” of vehicle or “renting” of vehicle for the purpose of levying service tax. Such assertion of ours is demonstrated on the basis of discussion held herein above as also from the following paragraphs.
14.1 It would amount to artificial requirement of statute if only those persons are taxed who give away their vehicles without retaining any control either personally or through driver. The concept of lease and licence is sought to be brought into picture by contending that lease would have insurable interest which is absent in licence.
It is a well settled principle of interpretation of statute that taxing statute must be read and interpreted giving meaning to the plain language. The principle of strict construction applicable to taxing statute would not mean where the same falls formally within the ambit of law, the court can avoid the tax by putting restricted construction on some supposed hardship.
The Supreme Court in case of Commissioner of Wealth-tax v. Smt. Hashmatunnisa Begum, reported in AIR 1989 SC 1024, has held that no question of strict construction would arise when statutory provision itself is reasonably open to only one meaning. The Apex Court has gone to the extent of saying that when intention of the taxing statute is clear, it cannot be defeated by mere defect in phraseology on the ground that provision more artistically could have been drafted (AIR 1971 SC 2463).
The Finance Minister while presenting the Budget has chosen to bring under the tax net various specified services. As far as Finance Bill, 2000, and explanatory note issued by the Ministry are concerned, it was indicated in respect of administration of service tax, few changes have been made which would require necessary action. The tour operator and rent-a-cab scheme operator who were exempted from payment of service tax were indicated not to be getting any such benefit.
14.2 At this stage, it would be worthwhile to consider the definition of “Rent”. Rent means the act of payment for the use of something. It is the act of letting out or allowing the use like apartment, house or car.
Short Oxford English Dictionary, defines “Rent” as under :
“Source of revenue or income, separate pieces of property yielding a certain return to the owner.”
“A tax or similar charge levied by or paid to a person.”
As per the Reader’s Digest Great Encyclopedic Dictionary, “Rent” means “Tenant’s periodical payment to owner or landlord for use of land, house, or room; payment for hire of machinery etc. charge, periodical charge on land etc. reserved to one who is not the owner-free, exempt from rent; roll, register of person’s lands etc. with rents due from them; sum of person’s income from rents; sum of person’s income from rents-service, (tenure by) personal service in lieu of or addition to rent. Take, occupy, use, at a rent; let or hire for rent; be let at specified rent; impose rent on (tenant).”
As per MacMilan Dictionary “Rent” means an amount of money that you pay regularly for using a house, room, office etc. that belongs to someone else.
As far as word “hire” is concerned, “hire” means “payment under contract for the use of something.”
“Hiring” is bailment by which the use of thing or the services are contacted for, at a certain price and reward.
As per Black’s Law Dictionary, “hiring” means “a contract by which one person grants to another either the enjoyment of a thing or the use of the labor and industry, either of himself or his servant, during a certain time, for a stipulated compensation, or where one contracts for the labor or services of another about a thing bailed to him for a specified purpose.
14.3 Renting means a usually fixed periodical return, especially, an agreed sum paid at fixed intervals by a person for any use of the property or car. It is also the amount paid by a hirer to the owner for the use of the property or a car. Hiring is also engaging services or wages or other payment. It also amounts to engaging temporary use.
It cannot be disputed that both in “renting” and “licensing”, de facto possession of the thing is enjoyed. Difference is well carved out under the law wherein both, de jure possession and control is given, but in “renting”, it is right-in-rem whereas in “licensing”, it is right-in-persona. When rent-a-cab scheme operator gives the car on rent, de facto possession is, of course, there but, it is not acceptable to uphold that wherever de jure control and possession of the vehicle stands transferred in law from the owner to the person on renting/hiring the service that the service tax is leviable and this is, of course, not different than services rendered on a contractual basis, providing transport service for fixed amount of periodical return or fare.
We need not be oblivious of the fact that for the purpose of regulating the business of renting of motor cabs or motor cycles to persons who are desirous of driving by themselves or through drivers, either for their own use or for any matters connected herewith, the scheme is made by the Central Government,
Conceptually and essentially, if the nature of service provided is the same, natural corollary is that such service shall be taxed under the taxing statute. It nowhere culls out from the taxing statute that the same contemplated taxing those services where legal possession is handed over by the owner of the person renting the vehicle and where such de jure possession continue with the owner or person providing the service to the customer, such service is to be excluded.
We also need to remind ourselves that concept of providing transportation service where de jure control remains with the owner or company of the vehicle and the driver and yet, it functions in accordance with the wish and desire of the person hiring such vehicle is extremely popular in India unlike the concept of person renting the cab desiring to drive himself by having all liabilities on himself. In absence of any specific exclusion in the statute of such service from the taxing net, large portion of such services cannot be held to be non inclusive by any artificial interpretation.
Principle of contemporaneous exposition whereby yellow and black taxes are not subjected to service tax also would not preclude us to resort to such interpretation.
14.4 From the aforesaid discussion, it can be said that the petitioner cannot escape tax liability on the ground that the hiring is different from renting as the intention of the Government is to tax service provider of a service which involves both hiring and renting of a cab for a longer duration and distinction as sought to be carved out by the petitioner is not finding favour with this Court.
Despite there being Section 74 of Motor Vehicles Act, when Section 75 of the said Act is brought on statutory book, that does not also allow us to hail the submissions of the petitioner that those who give vehicle without exclusive control cannot be taxed. The Tribunal ignored the legal position. There is nothing to read into the taxing statute that only those persons who own the vehicles and give their vehicles on rent with exclusive control of the customer only would be charged.
15. The Tribunal in case of R.S. Travels v. Commissioner of Central Excise, Meerut, reported in has made out distinction between providing rent-a-cab service or giving vehicle on lease or hire, to hold that ordinary meaning of the words “to rent” is allowing the use of something one owns in exchange for payment. Therefore, the test for ascertaining whether an activity is covered by the entry “rent-a-cab operator service” is as to whether it involves giving the cab, with or without the driver, to a client for a certain period of time for some consideration. However, when a cab operator provides his cab with a driver to his client on demand for going from one place to another and charges him on per kilometer basis or a lump sum amount on distance, as fixed with the client and control of the vehicle always remains with the cab operator/driver, he is providing transport service and this activity would be outside the purview of the entry — ‘rent-a-cab operator’s service’.
16. The Delhi Tribunal in case of Kuldip Singh Gill v. Commissioner of Central Excise, Jalandhar, reported in , was examining the issue where the public sector undertaking had appointed the appellant as a contractor for providing transport to its employees as and when required at the fixed places against payment on kilometer basis. The contract was clear that the public sector undertaking was not renting out any particular number of vehicles, but, was making payment for operating trips to various places. The vehicle continued to remain with the appellant only and whenever the trips were required to be made, the appellant was asked to carry out the same and he was paid per trip depending upon distance, time, etc. as per the rate sheet. The Tribunal, on taking note of the fact and taxing provisions of the Act, held that it was providing a transport service and was not amounting to a renting of a cab.
The Punjab & Haryana High Court, later on, reversed such a decision in the case of Commissioner of C. Ex. v. Kuldeep Singh Gill, reported in (2010) 27 STT 224 = (P&H), holding thus :
“A conjoint reading of the relevant provisions would reveal that the service provided by a tour operator in relation to a tour or by a rent-a-cab scheme operator in relation to the renting of cabs is liable to service tax under the Act. Since it was not a matter of dispute that the assessee was providing transport service to the IOC on contract basis, it was liable to pay service tax during the relevant period. In the instant case, the Tribunal had ignored the legal position mainly on the ground that the cabs were not leased out by the assessee for any period of time for use by the IOC according to its discretion and service tax was not imposable. Here, the Tribunal had fell in legal error in this regard.”
17. The Punjab & Haryana High Court in yet another decision on this subject followed the decision of Madras High Court which is discussed at length hereinafter.
In the case of Express Tours & Travels P. Ltd. v. Commissioner of C. Ex., reported in = (Tribunal), the Tribunal of Mumbai Bench held that the appellant failed to produce the evidence to indicate that the car was actually hired by customer and not rented. He could not escape the tax liability on the ground that “hiring” was different from “renting” since the Government’s intention was to tax the service providers of a service, which involved hiring/renting of a cab formally for a long duration, unlike the “Yellow & Black” cabs which were only engaged by a person for short time.
18. The Delhi Tribunal in the case of Ghansyam Gupta v. CCE, reported in (2007) 11 STT 130, found that the assessee had rented out a vehicle to a hirer where vehicle was to be stationed at the premises of hirer and was under his exclusive control. This was held as a clear case of rent-a-cab service. The person, thus, who is engaged in the business of engaging taxis for customers and giving them service without even owning or plying vehicle also can be held liable for paying service tax under the category of “Rent-a-cab Scheme Operator”.
19. The Madras High Court in the case of Secretary, Federation of Bus-operators Assn T.N. v. UOI (supra), examined the issue of service tax applicable to the tour operators under Section 65(52) of the Finance Act and Rent-a-Cab Scheme Operator under Section 65(38) of the Finance Act and dealt with each category separately. Under the heading “maxi car” or “motor car”, it discussed various aspects/legal provisions and held thus :
“(45) We will not consider the writ petition in case of the persons or organizations that are “motor cab owners” or “maxi cab operators.”
(46) Common arguments were addressed by Mrs. Nalini Chidambaram, learned Senior Counsel, Mrs. Radha Gopalan and Mr. D. Palani, learned Counsel in respect of this category. This permit for plying the motor cab is also covered under Section 74 of the Motor Vehicles Act, which is the provision for grant of “contract carriage permit”. The provisions of Sub-sections (v), (vii) and (viii) of Section 74 of the Motor Vehicles Act speak about the “motor cab permits”. The term “cab” is already defined vide Section 65(9) of the Finance Act meaning a “motor cab” or a “maxi cab”. While the definition of “maxi cab” has been literally lifted from Section 2(22) of the Motor Vehicles Act so also the definition of “motor cab” has been lifted from Section 2(25) of the Motor Vehicles Act.
(47) The most important provision in this behalf is Section 35(38) of the Finance Act which suggests that “rent-a-cab scheme operator” means any person engaged in the business of renting of cabs. This definition is extremely general and wide. Any person who is in the business of renting the cabs, meaning ‘‘motor cab” and “maxi cab” would be deemed to be a “rent-a-cab scheme operator” as per this section. Immediately, thereafter, it would be worthwhile to see that under Section 65(48)(o) of the Finance Act, the services provided to any person by a rent-a-cab scheme operator in relation to renting of a cab has been declared to be a “taxable service” and this service is made taxable under Section 66(3) as amended. The only other provision which would be worth seeing would be Section 67(n) under which, the taxable service provided by a rent-a-cab scheme operator shall be the gross amount charged by such operator from such persons for services in relation to the renting of a cab and includes such rental. It will, therefore, be seen that the Finance Act takes into its sweep the services provided to any person by any person engaged in the business of renting of motor cabs or maxi cabs. Section 2(22) of the Motor Vehicles Act provides “maxi cab” means any motor vehicle constructed or adapted to carry more than six passengers but not more than twelve passengers excluding the driver for hire or reward. Similarly, Section 2(25) of the Motor Vehicles Act provides “motor cab” means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward.
(48) There can be no doubt that such motor cabs or maxi cabs are plied as “contract carriages” and/or under Section 88(9) of the Motor Vehicles Act read with Rules 82 to 85 of the Motor Vehicles Act. It would, therefore, be clear that the moment a vehicle which carries the permit as a “motor cab” or “maxi cab” is rented by a person, who is engaged in the business of renting cabs, such person who is so engaged in the business of renting cabs would be in the tax dragnet of service tax.
(49) The main argument by some of the learned Counsel was that a person who owns a motor cab or maxi cab is not a “tour operator” within the meaning of Section 65(52) of the Finance Act as the permit granted to ply the motor cab or maxi cab is not necessarily a “tourist permit” nor could such vehicles be called “tourist vehicles”. The learned Counsel addressed us in relation to Section 65(50), (51) and (52) of the Finance Act.
(50) We have already shown that every “motor cab” or “maxi cab” is a “contract carriage” and would certainly come under the definition of Section 2(43) of “tourist vehicle” as it is required to be constructed, adapted and maintained under the Motor Vehicles Act and the Rules framed thereunder as a “tourist vehicle”. If any person uses such a vehicle in the business of operating tours then, certainly, such a person would be a “tour operator” and would come under the dragnet of the Finance Act under Section 65(52).
(51) However, in our opinion, the provisions of Section 65(48)(o) read with Section 66(3) of the Finance Act are extremely relevant and under any circumstances would cover the persons like petitioners. Under those provisions, there is no necessity whatever of having any “tourist permit” as such and it is enough if a person is engaged in the business of renting of motor cabs or maxi cabs.
(52) It was further tried to be argued that number of petitioners did not have a licence or a permit under Rent-a-cab Scheme, 1989 under the Motor Vehicles Act. The argument is clearly erroneous. That was a requirement only under the unamended provisions of Section 65 and more particularly under the definition clause which then was Section 65(32). It ran as under :
“rent-a-cab scheme operator” means a person who is a holder of a licence under the Rent-a-Cab Scheme, 1989 framed by the Central Government under Motor Vehicles Act, 1988 (59 of 1988).
We have already pointed out that the scope of amended provision, which is as per Section 65(38), has been widened by deleting the requirement of holding a licence under Rent-a-cab Scheme, 1989. Under the amended provision any person engaged in business of renting of cabs becomes a rent-a-cab scheme operator.
(53). We have, therefore, no hesitation in holding that if the petitioners are plying the motor cabs or maxi cabs and the services are provided by them to any person in relation to the renting of the cabs, such service becomes a “taxable service” and therefore, comes within the ambit of Section 66(3) of the Finance Act. In view of these provisions, it is not at all necessary to rely exclusively on Section 65(50), (51) and (52) which deal with the services offered by the “tour operators.” That subject is entirely distinct and separate from the subject of the services provided by a rent-a-cab scheme operator though relevant as we have already shown in paragraph 50 while dealing with the petitions of “tour operators”. We have already pointed out that the only requirement is the user by a person of the “tourist vehicles” for the “tour” and being engaged in that business. We have no doubts that a cab-owner who engages in that business for the purposes of renting a cab could also be held to a “tour operator” and would be covered under Section 65(50), (51) and (52) of the Finance Act.
(54) We have, therefore, no hesitation in holding that if the petitioners are plying the maxi cabs or motor cabs and giving the services in relation to the renting of a motor cab or maxi cab then, they would be in the tax-net and cannot complain that they are not covered by the Finance Act.”
20. The Punjab & Haryana High Court was also considering the question as to whether transport service provided by the respondent-firm to the Indian Oil Corporation was liable to service tax or not? The Court, after considering various provisions as also decision of the High Court of Judicature at Madras in the case of Secretary, Federation of Bus-operators Assn T.N. v. UOI (supra), applied all vital observations of Madras High Court mutatis mutandis to the case before the High Court. Accordingly, it held that transport service provided to Indian Oil Corporation was the taxable service and it set aside the decision of the Tribunal by upholding the view canvassed by the Revenue.
21. In view of the discussion above, it is to be concluded that the service tax which was introduced for levying the tax on certain taxable services as such services contributed substantially to Gross Domestic Product (GDP) and rent-a-cab service is specifically covered under the tax net. The question Nos. I and II needs to be answered this wise that the services provided by the respondent herein would get covered under rent-a-cab service and thereby, respondent is to be held liable for the service tax thereon.
22. This brings us to the question Nos. V and VI which concern invoking of extended period of five years for levying service tax in case of the respondent.
23. Commissioner noted that the registration was effected by the petitioner in the year 2004 and one of the terms of its agreement with GSEB clearly indicates that liability to pay service tax shall be of the respondent. It also further held that necessary details as would be necessary for assessing the quantum of service tax were not furnished by the respondent and petitioner agreed not to have filed service tax return in his statement recorded and hence, this should be presumed as mala fide intention on the part of the respondent. It levied the penalty giving these reasonings.
24. Tribunal, however, treated this issue academic in nature and rightly so as it held in favour of the assessee on earlier adjudged issues (Nos. I and II). It, of course, held that no intentional suppression or mala fide could be read into the action of the respondent assessee as this service has been recently brought under the tax net and much ambiguity was prevailing in respect of the same.
25. We are in complete agreement with the Tribunal that invocation of extended period required deliberate act of suppression or mala fide or to the Revenue, the same is not available in the instant case.
25.1 This service was levied with effect from 16th July, 1997, however, vide Notification No. 3/99, it was exempted from tax upto 31st March, 2000. Section 66(3) of the Finance Act which is the charging Section, brought the same under the tax net.
25.2 Initially, registration and owning of minimum particular numbers of vehicles was a must and later on, amendments in the law were brought.
25.3 Merely because the petitioner got himself registered on 23-3-2004 and by way of abundant caution incorporated and accepted its liability in one of the terms of agreement, as and when arises, that ipso facto cannot be adjudged as his deliberate act of non-payment of tax alleging suppression and mala fide intention. It is a matter of record that the petitioner has been operating in the field from the year 1997. Every year by virtue of tender published by GSEB on the basis of yearly contract, it provides vehicles to the Board for the purpose of examining squad, for transfer of papers and for other requirements during the SSC and HSC examinations. Considering a serious legal debate as to who can be said to be renting of a cab, petitioner if has not paid service tax on such services, the Tribunal correctly appreciated that such, by no stretch of imagination, be held as mis-statement or deliberate act of suppression or mala fide intent.
26. Both the notices being 31-8-2006 and 19-10-2007 since are given beyond the stipulated period invoking large period of limitation, we answer these issues in favour of the assessee holding that the Tribunal committed no error in deciding these issues.
27. In light of the totality of facts and circumstances of the case and the law on the subject, the aforementioned substantial questions of law raised in both these Tax Appeals are answered as follow :
(a) Question Nos. I and II are answered in negation and hence, in favour of the revenue.
(b) Question Nos. III and IV do not require any separate answers being the extension of the arguments of Question Nos. I and II.
(c) Question Nos. V and VI are answered in negation and therefore, in favour of the assessee.
28. Both these Tax Appeals are disposed of in the above term.
Motor Vehicles Act.