TaxTMI 
TaxTMI 
2012 (7) TMI 707
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....65(105)(n) of the Finance Act, 1994. The impugned demands are for various periods from April, 2000. In each case, the penalties imposed on the assessee under Sections 76, 77 and 78 of the Act and the demand of interest on service tax under Section 75 of the Act are also under challenge. 3. The appellants were engaged in the business of plying buses on intra-State (Karnataka) or inter-State routes under Contract Carriage Permits or Tourist Permits during the material period without obtaining service tax registration and without payment of service tax. The relevant show-cause notices issued by the Department, some of them invoking the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994, alleged that the appellants were providing taxable service as Tour Operators' and hence liable to pay service tax for the respective periods. Where the demand of service tax was for a period beyond the normal period of limitation, the show-cause notice invoked the extended period of limitation on the alleged ground of suppression of facts by the noticee with intent to evade tax. All the show-cause notices proposed to levy interest on tax and also to impo....
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....This legal position continued upto 09/09/2004. W.e.f. 10/09/2004, the definition of "Tour Operator" was further amended vide Section 65(115) of the Finance Act, 1994 providing the amended definition of "Tour Operator" as under:- "Section 65(115): "tour operator" means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder." The definition of "tour operator" was further amended w.e.f. 16/05/2008 as under:- "Section 65(115): "tour operator" means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle or a contract carriage by whatever name called, covered by a permit, other than a stage carri....
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....s unconstitutional. e. Notification No. 15/2007 dt. 04/04/2007 was issued under Section 11C of the Central Excise Act read with Section 83 of the Finance Act, 1994 providing that any amount in excess of the service tax calculated on a value equivalent to 40% of the gross amount charged by a tour operator providing services in relation to transport of passengers from one place to another under a contract carriage permit issued by the appropriate transport authority shall not be required to be paid in respect of such service. CBEC issued a clarification on 04/04/2007 itself stating inter alia that abatement to the extent of 60% was being allowed as there was uncertainty with regard to levy of service tax and there was a general practice of not levying service tax on the aforesaid service. A clarification of this nature would clearly indicate that neither the Department nor the assessee had a clear view as to the taxability of the service of tour operators. In such circumstances, it cannot be said that the appellant made any deliberate attempt to evade payment of service tax. Therefore, in any case, the demand for the extended period is liable to be set aside. f. N....
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....appellant in appeal No.ST/41/2011 (Sl.No.8) that the plea for excluding income from stage carriage and also luggage & parcel charges from the taxable value was rejected on the ground that no documentary evidence was produced. e. It was submitted on behalf of the appellants at Sl.Nos. 9 & 10 that the plea of limitation was not discussed in the impugned order. f. The lead Counsel himself, representing the appellants in the appeals at Sl.Nos.4 & 12, submitted that the impugned order at Sl.No. 12 did not demand service tax on income from contract carriages and that the Department did not challenge this. However, in the order challenged in the appeal at Sl.No.4, there was demand of service tax on income from both contract carriage and tourist vehicle. 6. Ld. JCDR representing the Revenue argued in support of the findings recorded against the assessees. He argued that the term "tour" defined under Section 65 of the Finance Act, 1994 had a legal meaning different from what was understood in common parlance. Parliament's wisdom could not be questioned. As per the definitions of "tour" and "tour operator", the nature of permit which was used for operating the t....
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....eunder. The definition of "tour operator" was widened w.e.f. 10/09/2004 to mean any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight-seeing or other similar services) by any mode of transportation. The meaning of tour operator was further expanded w.e.f. 16/05/2008 by including (in addition to tourist vehicle) a contract carriage (by whatever name called) covered by a permit, other than a stage carriage permit, granted under the Motor Vehicles Act, 1988 or the rules made thereunder. From these provisions, it would become abundantly clear that the activities of the assessees who are before us fell within the definition of "tour" and accordingly the assessees fell within the ambit of "tour operator" defined from time to time. Therefore, the arguments made on behalf of the assessees to the effect that they were only transporting passengers and not operating any "tour" are not acceptable. It is not in dispute that they were transporting passengers who were undertaking journey from one place to another irrespective of the distance between such places. In other words, the passengers were touring....
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....ng authority was not clear on the taxability of transportation of passengers. It has been argued that this aspect is evident from Notification No.15/2007-ST dt. 04/04/2007, Board's clarification dt. 04/04/2007 and Section 75 of the Finance Act, 2011. It has been argued that, in such circumstances, the assessees cannot be held to have suppressed any facts with intent to evade payment of service tax. We are of the view, in all the cases where the extended period of limitation was invoked for recovery of service tax from the assessees, these arguments have to be considered by the adjudicating authorities. 12. Certain grievances against valuation have also been raised on behalf of the assessees. In some cases, income from stage carriage was also included in the taxable value and the plea for excluding it was not properly considered. In a few cases, the plea for excluding luggage and parcel charges from the taxable value was either not considered or rejected for want of supporting evidence. In one case, the assessee's plea of 'cum-tax value' was not examined. The ld. Commissioner(Appeals), in one case, did not discuss the plea of limitation at all. 13. Now that we ha....