TaxTMI 
TaxTMI 
2011 (4) TMI 11
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....ster themselves under the provision of the Finance Act, 1994, for payment of service tax on the ground that they are tour operators coming under the definition of Section 65 (78) of Finance Act, 1994, (Act 32 of 94). It appears that the petitioners and other such noticees challenged the action of the Department by filing writ petitions before this Court. The writ petitions were heard by a Hon'ble Division Bench of this Court and such of those writ petitions filed by stage carriage operators and rent-a-car-scheme operators were dismissed by the Hon'ble Division Bench by its Judgment in The Secretary Federation of Bus Operators Association of Tamil Nadu vs. Union of India, 2001, 2 MLJ 590. The Hon'ble Division Bench in paragraph 36 of the Judgment dealt with the arguments advanced by the persons holding spare bus permit. At this stage, it is relevant to note the direction issued by the Hon'ble Division Bench which is as follows:- 36. At this that, all the learned counsel pointed out that the petitioners spare buses may not be the 'tourist vehicles' within the meaning of Section 2(43) of the Motor Vehicles Act and, therefore, they are not liable. Indeed, if ....
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....sel appearing for the petitioners, submit that the impugned orders are in violation of the principles of the natural justice as the respondent did not afford an opportunity of personal hearing inspite of the same being specifically sought for by the petitioners in their reply to the show cause notices. The learned Senior counsel would further submit that the impugned order is based on surmises and conjectures. Further that the spare bus owned by the petitioners is also a stage carriage and different from the Tourist vehicle, the spare bus has a seating capacity of 57+2 with seating arrangement on the right hand side 3X11 =33 seats, rear side 6X1 = 6 seats, left side facing forward 2X9 = 18 seats and in all 57 seats plus two drivers, whereas in a Tourist vehicle the seating arrangement will be 2X2 with more space between two seats with a maximum of 36 seats. The spare bus will have one entrance and one exist, whereas in a Tourist bus there will be only one entrance. Therefore, it is contended that a spare bus cannot be treated as a Tourist vehicle for the purposes of the Finance Act and therefore, the impugned orders are without jurisdiction. 6. Mr.S.Udayakumar, learned Senior St....
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.... effect from 01.04.2000. The petitioners before the Hon'ble Division Bench which include the petitioners herein were stage carriage operators owning spare buses covered under spare bus permits issued as per Section 72 (2) (xvii) of the Motor Vehicles Act, 1998, contract carriage operators, owning vehicles covered under Section 74 of the Motor Vehicles Act, 1988, and owners of maxi cabs or taxies having permits under Section 74 of the Motor Vehicles Act, 1998. Before the Hon'ble Division Bench the spare bus permit holders contended that spare buses are not tourist vehicles within the meaning Section 2(43) of the Motor Vehicles Act, and therefore, not liable to pay Service Tax. The Hon'ble Division Bench observed, if vehicles owned by the petitioners are not tourist vehicles within the meaning of Section 2(43) of the Motor Vehicles Act, read with Rule 128 of the Rules framed thereunder, such petitioners would not be required to register under the Finance Act. The fair stand taken by the learned Senior Standing counsel for the Department in the said batch of cases, accepting the said position was recorded by the Hon'ble Division Bench. However, the Department took a st....
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.... power under a fiscal statue, while passing an order bringing the petitioner under the Tax net is required to render a specific finding as to how the petitioner is liable to pay the tax and the same cannot be on surmises and conjectures. The respondent cannot ignore the definition of "stage carriage", "tourist vehicle' as defined under the Motor Vehicles Act, since the provision of the Finance Act, 1994, refers to the meaning of the terms 'tourist vehicle' and 'tour operator' as defined under the Motor Vehicles Act, 1988. Therefore, the respondent has to necessarily examine the aspect as to whether the provision of the Finance Act, 1994, are attracted to the case of the petitioners vis-`-vis, the definition of 'stage carriage' and 'tour vehicle' as contained in the Motor Vehicles Act, 1988. From the definition of Section 2(40) of the Motor Vehicles Act, it is clear that carriages running under the public transport system fall under the category of stage carriage, since the passengers have a right to board or alight from such carriages according to their choice and convenience and such passengers individually pay the fares for the journey and such....
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....Act is not a tourist vehicle within the meaning of Section 2(43) of the Motor Vehicles Act. The Hon'ble Division Bench thought fit to grant such liberty to the holders of spare bus permit to substantiate that their reserve vehicle under the stage carriage permit was not capable of being used as a contract carriage under special permit or was not used as a contract carriage by availing a special permit. It cannot be disputed that the essential ingredients of a contract carriage, among other things, it carries passenger for hire or reward, it is engaged in contracts whether expressed or implied for use of such vehicle as a whole, the contract to be entered into by the person with the permit holder, the agreed consideration payable on time basis or one point to another, and the vehicle should not stop to pick up or set down passengers not included in the contract anywhere during the journey and it includes a maxi cab or a motor cab. 15. In Smt.L.V.Sankashwar's case, referred supra, the petitioners were contract carriage bus operators and tourist taxi operators, who challenged the levy of Service Tax on them, under the category of 'tour operator'. They contended that....