TaxTMI 
TaxTMI 
TaxTMI 
2014 (11) TMI 165
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....d the appellant was transporting the employees as per the schedule given by the companies. This activity was considered as taxable service as defined under the category of 'Tour Operators' which was under vogue with effect from 01/04/2000. The appellants were accordingly issued a show cause notice requiring them to pay service tax amounting to Rs. 72,91,057/- for the period October 2001 to September 2006 along with interest with proposal to impose penalty under Sections 75A, 76, 77 and 78 of the Finance Act, 1994. The matter was adjudicated by Commissioner who held that the appellant was not required to register themselves with the Service Tax authorities till 09/09/2004 but was required to register themselves and pay Service tax with effect from 10/09/2004 from which date the definition of 'Tour Operators' was amended. Commissioner accordingly dropped the demand for the period relating to October 2001 to 9 th September 2004 and confirmed the demand amounting to Rs. 40,99,449/- for the period 10 th October 04 to September 2006 by invoking extended period along with interest and imposed penalty of equivalent amount under Section 76 and another penalty of the same amount unde....
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....for the period October 2001 to September 2006 by invoking extended period of limitation is not sustainable for the demands beyond the period of one year as there was no malafide intention to evade service tax as the appellants were under the impression of bonafide belief that only those tour operators, who are engaged in the business of operating tour in a tourist vehicle in terms of Section 2 (43) of the Motor Vehicle Act, 1988 are covered under definition of tour operator and no other type of vehicles and since the appellant's vehicle did not conform to the conditions prescribed under Rule 128 of Motor Vehicle Rules, they believed that they are not covered by the definition of tour operator. As the appellant vehicle did not conform to the conditions prescribed under Rule 128 of Motor Vehicle Rules, therefore, they are out of the purview of the definition of tour operator within the meaning of Section 65 (115) of the Finance Act, 1994. Therefore, no penalty is also imposable. 9. He further submits that the appellants are not engaged in the activity of planning, scheduling, organizing as all these activities are carried out by his customers and that it was the customer who had....
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....r or hire service, from whole of the service tax leviable. He further submits that he got the support of the Finance Act, 2011 and Section 75 of the Act gives the exemption retrospectively i.e. 1 st day of April, 2000. He further relied on CBEC Circular no. 334/13/2009-TRU dated 06.07.2009 and submits that as per the said circular para 6 gives the exemption for the service provided by the tour operator undertaking point to point transportation of passengers in a vehicle bearing contract carriage permit as such transportation is not in relation to tourism or conducted tours or charter or hire. 14. He further submits that in the case of Suresh Kumar Advani 2014 (35) STR 138 (Tri-Del), the activity similar to M/s. Capri was held by the Tribunal as not covered under Tour Operator service. He also relied on the decision of Divisional Controller vs. CCE, Nagpur 2014 (33) STR 168 in support of his contention. Therefore, it is prayed that impugned order is required to be set aside. 15. On the other hand, ld. AR submits that the case of the appellant is squarely covered by the decision of Sri Pandyan Travels Vs. CCE, Chennai-II reported in 2004 (163) ELT 409 (Mad), wherein it was held tha....
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.... the Hon'ble High Court in para 8 has observed as under:- 8. The other conclusion/observation in para 41 is relevant : "41.......We do not see as to how the cases of the holders of contract carriage permits would be in any manner different from the holders of the stage carriage permits and the owners of the spare buses thereunder. The same rationale would apply even to the contract carriage vehicles covered by the permit under Section 74 of the Motor Vehicles Act. In fact, the most of the petitioners, who are having the contract carriage, are having the permits under Section 88 (9) of the Motor Vehicles Act read with Section 82, which are nothing but "tourist permits", issued for the purpose of promoting the tourism and obviously issued to the tourist vehicles as contemplated under that section. Therefore, there will be no question of entertaining their objections and they will straightaway be covered under Section 65(52) of the Finance Act. Such petitioner where the permits are under Section 88 (9) of the Motor Vehicles Act, would be straightaw! ay liable to be dismissed and are dismissed as such." "Para24..... A plain reading of the pr....
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....erson is 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 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, or Rules. As the second part of the definition does not cover the activity of the appellants in the category of tour operator as discussed in the earlier paragraphs. Therefore, only point of examination is that whether the appellants are engaged in the business of planning, scheduling, organizing or arranging tours or not. 24. We have examined the various agreements between the appellants and their customers and one of such agreements between the appellants and M/s. Grasim Industries Ltd., is as under, wherein the clause 1 reads as follows:- Payments terms - Payment shall be released after 15 working days after submission of your correct bill along with copy of logbook, complete in all respects duly verified by our authorised representative. Taxes & Duties - The Rates are inclusive of all taxes, duties levies applicable from time to tim....