2010 (7) TMI 298 - AT - Service Tax

Mere contract carriage permit doesn't trigger tour-operator tax; vehicles must meet CMVR tourist-vehicle criteria (Clause 105(n), Section 65)

CESTAT held that mere possession of a contract carriage permit does not automatically attract tour-operator service tax; vehicles must meet Central Motor ... Tour operator services - taxable service under sub-clause (n) of Clause 105 of Section 65 of the Finance Act, 1994 - not paying service tax on the same despite of being registered with Service Tax department - vehicle used by them were issued with the permit as contract carriage under the Motor Vehicles Act, 1988 - vehicles were covered under 'tourist vehicles' and the respondents were covered as 'tour operator' - Held that: - unless the vehicle of the contract carriage permit holder fulfills the requirement as mentioned in Central Motor Vehicles Rules of a 'tourist vehicle', merely because he is holding the contract carriage permit, he does not become liable to tour operator service - dismiss the appeal filed by the Revenue Issues:1. Appeal against dropping of proceedings for non-payment of service tax by a travel agent providing tour operator services.2. Interpretation of the definition of 'tour operator service' under Section 65(52) of the Finance Act, 1994.3. Determining whether vehicles with contract carriage permits qualify as tourist vehicles and operators as tour operators.Analysis:1. The appeal was filed by the Revenue against the dropping of proceedings initiated for non-payment of service tax by a travel agent providing tour operator services. The Commissioner held that merely having a contract carriage permit for vehicles does not automatically classify them as tourist vehicles or the operators as tour operators. The Revenue contended that vehicles with contract carriage permits are tourist vehicles and their operators are tour operators. The Revenue relied on previous tribunal decisions to support their argument.2. The definition of 'tour operator service' under Section 65(52) of the Finance Act, 1994 requires three key elements to be met: the person must be engaged in operating tours, the tours must be conducted using a tourist vehicle, and the vehicles must have permits under the Motor Vehicles Act for tourism business. The Commissioner correctly noted that having a contract carriage permit does not automatically make a vehicle a tourist vehicle. The Revenue's argument was based on the definition of 'Contract Carriage' under the Motor Vehicles Act, 'Tourist Vehicle' under the Finance Act, and 'Tour Operators' under the Finance Act.3. The Tribunal reviewed the submissions and records, finding that the Revenue failed to provide evidence to challenge the Commissioner's findings. Previous tribunal decisions, including the case of Ghanshyam Travels, held that vehicles must meet specific requirements to be considered tourist vehicles, regardless of holding a contract carriage permit. Consistent views were upheld in other cases like Gatulal V. Patel and Gandhi Travels, affirmed by the High Court of Gujarat. The Revenue's appeal lacked merit as they could not show any stay or modification in the decisions against them. Consequently, the Tribunal upheld the impugned order and dismissed the Revenue's appeal.This detailed analysis of the judgment highlights the key issues addressed, the arguments presented by both parties, and the legal interpretation applied by the Tribunal in reaching its decision.