TaxTMI 
TaxTMI 
2013 (6) TMI 265
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....l by this Order. 2. Brief facts of the case are as follows :- 2.1 The Appellant are registered under the category of "Tour Operator Services" having Service Tax Registration No. AZTPS3076JST001 for discharging their service tax liability on the above said services provided by them. 2.2 During the scrutiny of ST-3 returns of the appellant, it was observed by the Department that the appellant had shown the receipt of amount of Rs. 7,77,300/- for the period October, 2009 to March, 2010 and Rs. 8,46,300/- for the period April, 2010 to September, 2010, totaling to Rs. 16,23,600/- against services provided by them. The appellant had filled the necessary columns of these ST-3 returns as under :- (a) column 3(F)(I)(c) "amount received towards exempted services" (b) column CI "Transport of employees to factory". Therefore, it came to know that the amount, shown as received by the appellant towards exempted services was actually received by them against transport of employees to factory. 2.3 On going through the various provisions of Motor Vehicles Act and Finance Act, 1994/Service Tax Rules, 1994, it was observed by the Department that if the vehicles covering under stage carria....
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....the Finance Act, 1994. It is evident from the SCN that the service tax was demanded for the period from October, 2009 to September, 2010. The appellant is engaged in providing services for transportation of the staff and workers of its clients from Gwalior to their factory situated at Malanpur Industrial Area, near Gwalior and back and is not at all engaged in the business of planning, scheduling, organizing or arranging any tours, it is not covered under the category of 'Tour Operators' and therefore not liable to pay service tax on the amount Rs. 16,23,600/- charged from its clients during the above said period. The appellant did not charge any service tax on the above said amount from its clients. That appellant in reply to the SCN had already explained the correct legal position and it is evident from the impugned Order that the adjudicating authority had not offered any comments on these legal submission of the appellant. Therefore, the impugned SCN is totally misconceived and based on mis-interpretation of the provisions of Section 65 of the Finance Act, 1994. 3.2 That as per the definition of Tour Operator Service', 'tour operator' means any person engaged in the business....
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.... 3.4 That the appellant does not have permit under relevant statute for conducting tourism business. The appellant has been granted permit specifically "for factory employees conveyance under Section 76 of Motor Vehicle Act". As such the appellant's above said services does not come within the ambit of the category of 'Tour Operator' and thus not liable to Service tax. As such, the impugned Order is not sustainable in Law and requires to be set aside. In view of above grounds of appeal, the appellant has prayed that the impugned Order may kindly be set aside with consequential relief to them. 4. Personal hearing in the case was held on 8-8-2012. Shri R.C. Saban, Consultant appeared for personal hearing on behalf of the Appellant and reiterated the submissions already made in the appeal memo. He gave additional written submissions which were taken on record. 5. I have carefully gone through the facts of the case, grounds of appeal, oral and written submissions made by the appellant at the time of personal hearing. After waiver of pre-deposit of service tax, interest and penalty imposed on the appellant vide the impugned order, I take up the appeal for final disposal. 5.....
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....e with such specification as may be prescribed in this behalf". Rule 128 of the Central Motor Vehicle Rules, 1989 prescribes those specifications, which a tourist vehicle should possess. Rule 128 specifies the standard of comforts that are required to be there in a vehicle for being recognized as a 'tourist vehicle' under the Central Motor Vehicle Rules, 1989. Numbers of specifications are given in that rule in respect of dimensions, structures, door arrangement, ventilation, luggage space, seating arrangements, painting and furnishing, lighting, fitting and accessories etc. In view of this, the first and foremost condition for a person to be held as a 'tour operator' within the meaning of Section 65(115) of the Finance Act, 1994 is that he must be engaged in the business of operating tours in a 'tourist vehicle' in terms of Section 2(43) of Motor Vehicle Act, 1988 read with Rule 128 of the Central Motor Vehicle Rules, 1989 and in no other type of vehicle. I find that the impugned Order is silent on the aspect that on what grounds the subject vehicle constructed or adapted and equipped and maintained in accordance with specification as laid down in Section 2(43) of Motor Vehi....
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.... with, his trade or business otherwise than for hire or reward, but does not include a motor vehicle used for public purpose". I find that the subject vehicle has a permit to carry more than 6 persons excluding the drivers and is to be used by M/s. Ranbaxy Ltd., Malanpur for carrying persons in connection with their trade or business otherwise than for hire or reward i.e. their employees and was not used for public purposes and was authorized by the R.T.O. to be used as 'Private Service Vehicle'. Therefore, subject motor vehicle was a 'Private Service Vehicle' and not a 'tourist vehicle'. To bring a person to the field of 'Tour Operator' service, that person should have been engaged in the business of operating tours in a tourist vehicle covered by a permit granted under Motor Vehicle Act, 1988. The person must have been engaged in the business of operating tours, the tours must be conducted using tourist vehicle, the vehicle must have been under the grant of permit under Motor Vehicle Act to conduct tourism business, but in the present case, the evidences on record does not support the allegations made in the impugned Show Cause Notice dated 5-4-2011. In the following case, ....