2009 (2) TMI 90 - AT - Service Tax

TNSTC not liable for service tax as 'tour operator' for transporting employees and groups. Penalties overturned.

The Tribunal found that the Tamil Nadu State Transport Corporation (TNSTC) was not liable to pay service tax under the category of 'tour operator' for ... Tour operator - package tour - planning, scheduling, organising or arranging tours - mode of transport - tourist vehicleTour operator - package tour - planning, scheduling, organising or arranging tours - mode of transport - Liability of TNSTC to service tax as a 'tour operator' for services rendered during 1-10-2004 to 31-12-2005. - HELD THAT: - The Finance Act, 2004 amended the definition of 'tour operator' with effect from 10-9-2004 to include persons engaged in planning, scheduling, organising or arranging tours by any mode of transport, while retaining the existing levy on operators using 'tourist vehicles'. The Board's clarification confirmed that the scope was extended to cover package tour operators who organise tours involving different modes of transport, but did not convert every transporter into a tour operator. The Tribunal found that TNSTC merely provided transport services (stage carriage services) for BHEL employees and groups of people and did not engage in planning, scheduling, organising or arranging tours as envisaged by the amended definition for package tours. Consequently the expanded levy on 'tour operator' service did not apply to TNSTC's activities, and the demands and penalties confirmed by the lower authorities were not sustainable.The impugned demand and penalties for tour operator service for the period 1-10-2004 to 31-12-2005 are not sustainable as TNSTC did not undertake package tours involving planning, scheduling or organising, and the appeal is allowed.Final Conclusion: The Tribunal allowed TNSTC's appeal, set aside the demand and penalties under the 'tour operator' category for the period 1-10-2004 to 31-12-2005, holding that mere provision of transport (stage carriage) without planning, scheduling or organising tours does not attract the amended levy on package tour operators. Issues:1. Liability of Tamil Nadu State Transport Corporation (TNSTC) to pay service tax for transporting employees and groups of people under the category 'tour operator.'2. Interpretation of the definition of 'tour operator' before and after the amendment.3. Applicability of penalties, interest, and demand of service tax on TNSTC.Analysis:Issue 1:The case involved the liability of TNSTC to pay service tax for transporting employees of BHEL and groups of people under the category 'tour operator.' The Additional Commissioner had initially adjudicated the liability during a specific period, which was later challenged in the appeal.Issue 2:The interpretation of the definition of 'tour operator' was crucial in this case. The definition was amended with effect from 10-9-2004 to include any person engaged in planning, scheduling, organizing, or arranging tours by any mode of transport. This amendment expanded the scope of the levy to cover a broader range of service providers beyond those using tourist vehicles.Issue 3:The penalties, interest, and demand of service tax imposed on TNSTC were contested in the appeal. TNSTC argued that the penalties and interest were not sustainable as their buses were not tourist vehicles and did not possess tourist permits. They claimed that the charge of suppression could not be upheld against them.The Tribunal carefully analyzed the facts and submissions. It noted that the scope of the levy under the category 'tour operator' was expanded with the 2004 amendment to include tours operated by any person engaged in planning, scheduling, organizing, or arranging tours by any mode of transport. The clarification issued by the Board emphasized that the levy was extended to package tour operators using different modes of transport.Ultimately, the Tribunal found that TNSTC did not engage in planning, scheduling, organizing, or arranging tours but only provided transport services. As a result, the liability of TNSTC to pay service tax under the tour operator service was deemed not in accordance with the law. The impugned order was set aside, and the appeal filed by TNSTC was allowed.