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Issues: Whether a contract carriage operator can be required to register and pay service tax as a tour operator without a prior determination that the vehicle is a tourist vehicle within the meaning of the Motor Vehicles Act and the Central Motor Vehicles Rules, and whether the impugned order was liable to be set aside for failure to consider the assessee's specific objection.
Analysis: The liability to service tax under the Finance Act turned on whether the vehicle used by the operator answered the description of a tourist vehicle and whether it was used for the purposes of a tour. The earlier Division Bench ruling relied upon by the petitioner recognised that if the vehicle was not a tourist vehicle, the Finance Act would not apply, and it also permitted the concerned operator to raise this objection before the assessing authority. The impugned order did not examine the petitioner's specific plea that the contract carriage was not being used as a tourist vehicle and instead proceeded on the basis of the earlier ruling alone. Since the factual determination on the character of the vehicle was essential to the applicability of the service tax provisions, the matter required reconsideration by the authority.
Conclusion: The impugned order was set aside and the matter was remanded for fresh consideration, with direction to decide whether the petitioner's vehicle was a tourist vehicle and to grant an opportunity of personal hearing.
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