2017 (4) TMI 338 - AT - Service Tax

Staff transportation service not considered 'tour operator service' for tax purposes

The Appellate Tribunal CESTAT NEW DELHI ruled that the activity of transporting persons by providing bus service for staff transportation did not qualify ... Levy of tax - bus service for transporting staff - Revenue entertained a view that such activity of transporting persons by providing bus will be covered under the taxable activity of “tour operator service” liable to service tax in terms of the provisions of FA, 1994 - Held that: - the case of Capricorn Transways Pvt. Ltd. vs. CCE, Raigad [2014 (11) TMI 165 - CESTAT MUMBAI] held when the vehicle, in question, are not tourist vehicle and are only contract carriage buses not holding tourist permit, no liability to service tax will arise - the assessee is providing buses at fixed charges and the schedule of operation is as per the instruction of the client company. There is no scope to tax such activity under a tour operator service. Reliance was placed on the Circular dated 17/09/2004 issued by the Board - The respondent herein was not engaged in planning, scheduling, organizing or arranging tours. They only provided buses on fixed charges for transportation of staff as per the schedule and timing decided by the client company. In such situation, there can be no liability of service tax under the category of tour operator service on the respondent - appeal dismissed - decided against Revenue. Issues:1. Whether the activity of transporting persons by providing bus service falls under the taxable activity of 'tour operator service' liable to service tax.2. Whether the respondent's provision of bus service for transporting staff constitutes a tour operator service under the Finance Act, 1994.3. Whether the impugned order correctly set aside the original order and allowed the appeal filed by the respondent.Issue 1:The primary issue in this case is whether the activity of transporting persons by providing bus service falls under the taxable activity of 'tour operator service' liable to service tax. The Revenue contended that the respondent's transportation of staff should be considered a tour, thus falling under the purview of tour operator service. However, the Commissioner (Appeals) held that the respondent's activity did not involve planning, scheduling, organizing, or arranging tours, as required by the statutory provisions. The Commissioner noted that the respondent merely provided buses for transporting staff as per the schedule and timing decided by the client company, without engaging in tour operator activities. The Commissioner's decision was supported by relevant legal provisions and previous case law, leading to the dismissal of the Revenue's appeal.Issue 2:The second issue revolves around whether the respondent's provision of bus service for transporting staff constitutes a tour operator service under the Finance Act, 1994. The contract between the respondent and M/s SKS Ispat and Power Ltd. outlined the scope of work as providing mini-buses for transporting employees to and from the factory site as per the client company's schedule. The Commissioner (Appeals) analyzed the activities performed by the respondent and concluded that they did not meet the criteria for a tour operator service. The Commissioner highlighted that the respondent's role was limited to transporting staff as directed by the client company, without engaging in tour planning or organization. This analysis, along with reference to relevant legal provisions and previous tribunal decisions, led to the dismissal of the Revenue's appeal.Issue 3:The final issue pertains to whether the impugned order correctly set aside the original order and allowed the appeal filed by the respondent. The Revenue challenged the impugned order, arguing that transportation of staff from different places to a common destination should be considered a tour. However, the Commissioner (Appeals) and the Tribunal found that the respondent's activity of providing bus service for staff transportation did not qualify as a tour operator service under the applicable legal provisions. The Tribunal further emphasized that the respondent's buses were not tourist vehicles and were operated on a contract basis for fixed charges, following the client company's instructions. The Tribunal's decision was in line with established legal principles and previous case law, leading to the dismissal of the Revenue's appeal.In conclusion, the judgment by the Appellate Tribunal CESTAT NEW DELHI addressed the issues surrounding the taxation of bus service for staff transportation under the category of 'tour operator service.' The analysis considered the contractual arrangements, statutory provisions, and previous legal decisions to determine that the respondent's activity did not constitute a tour operator service liable to service tax. The decision to dismiss the Revenue's appeal was based on the lack of evidence supporting the classification of the service as a tour, as well as the absence of tour planning or organization by the respondent.