TaxTMI 
TaxTMI 
2015 (11) TMI 835
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....in appeal against Orders under which the demands have been dropped. 2. The parties are engaged in providing buses/vehicles on hire on contractual basis to various customers like companies, factories, commercial establishments, schools etc. The vehicles operated between specified points for which they have contract carriage permits issued by the RTO. The service is provided as per the rates agreed to on the agreed routes and on basis of associate distance in kilometer, to employees of companies etc. Department contended that the services provided fall under Section 65 (115) as 'Tour Operator Service' and chargeable to service tax. The periods covered are both prior to 10.9.2004 as well as post 10.9.2004. 3. Heard both sides, who relied on the definitions of 'Tour Operator' as well as various judgments on the issue. 4. We have carefully considered the facts and submissions made by both sides. We find that prior to 10.9.2004, the definition of 'Tour Operator' was as under: "Tour Operator means "any person engaged in the business of operating Tourist Vehicles covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made there....
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....r of C.Ex., Rajkot Vs. Bharat Travels 2010 (20) STR 526 (Tri. - Ahmd.) this position was upheld by the Tribunal. The Tribunal's decision was upheld by the Supreme Court in Civil Appeal No. 3040 of 2011 filed by the Commissioner (Commissioner Vs. Bharat Travels 2012 (27) STR J79 (S.C.)). Again, the Tribunal in the case of Commissioner of C.Ex., Indore Vs. Ramsons Travels & Tours 2009 (14) STR 372 (Tri. - Del.) while relying on the Hon'ble Madras High Court judgement in the case of Secy. Federn. Of Bus-Operators Assn. of T.N. Vs. Union of India 2006 (2) S.T.R. 411 (Mad.) held that the vehicles in question which are covered under the definition in Section 2(43) of Motor Vehicles Act read with Rule 128 of Central Motor Vehicles Rules alone would be covered by definition of 'Tourist Vehicles' and therefore covered under the Tour Operator service. In the case of Secy. Federn. Of Bus-Operators Assn. of T.N. the Hon'ble High Court observed as follows: "20. If we turn to the definition of the "contract carriage", which is defined in Section 2(7) of the Motor Vehicles Act, it becomes clear that there is identical language used therein (with emphasized words). The....
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....dismissed. However, since later on during the course of arguments, the question of "legislative competence" was also raised, we did not dismiss the matters then at the conclusion since all these petitions were argued as a "group matter". We now make it clear that all the writ petitions filed by the "stage carriage operators", "contract carriage operators", "cab/ maxi cab operators" and "rent-a-cab scheme-operators" would be liable to be dismissed and are accordingly dismissed subject to the rider which we have spoken of in paragraph 36." We find that the conclusions reached in the judgment are very clear. The rider in para 36 is that, to be a 'Tourist Vehicle the requirements of Rule 128 have to be satisfied. The same position has been upheld in the Tribunal judgment in the case of J.K. Travels Vs. Commission of Central Excise vide Order No. A/2293-2302/13/CSTB/C-I. 4.4 At this stage we do not find it necessary to refer to all the other judgments cited by the Ld counsel except the case of Commissioner of Central Excise Vs. M/s. Gandhi Travels 2007 (6) STR 430 (Tri.-Ahmd.) in which the same conclusion was arrived at. The appeal to the High Court was not admitted as the Hig....
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....is being used under any permit under the Motor Vehicles Act, by a person who is engaged in the business of operating the tours then, the requirement of the Finance Act would be complete." Therefore the contention of Ld AR is rejected. 4.6 Revenue has also tried to rely on the judgment in the case of Sri Pandyan Travels Vs. Commissioner of C.Ex. Chennai-II 2006 (3) STR 151 (Mad.) to their favour. However, on going through the said judgment we find that it only supports the views expressed in paras above. The judgment refers to the Secy. Federn. Of Bus Operators Association of T. N. (supra) as follows: "We have, therefore, no hesitation first to hold that the first and foremost condition for a person to be held as a "tour operator" within the meaning of Section 65(52) of the Finance Act is that he must be engaged in the business of operating tours in a "tourist vehicle" in terms of Section 2(43) of the Motor Vehicles Act and in no other type of vehicle and, therefore, necessarily such vehicle must conform to the conditions prescribed under Rule 128 of the Central Motor Vehicles Rules". The views expressed above find confirmation from the fact that the definition of Tou....
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....lone in interpreting those provisions. Merely because the Motor Vehicles Act provides for "tourist permit", it would not mean that Section 65(52) of the Finance Act also contemplates only a "tourist permit". We cannot do violence to the language of the provisions by holding that a "tourist vehicle" contemplated under the Finance Act must be a vehicle having only "tourist permit." Some other decisions cited by the Ld AR are stay matters and not final decisions. Therefore they cannot be relied upon. In view of the above, we unhesitatingly hold that pre 10.09.2004, the activity undertaken by the appellants is not leviable to tax under the "Tour Operators Service" 5. We may now consider the period post - 10.9.2004. The definition of Tour Operator read as under: "Tour Operator" means any person engaged in 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, 1977 or the Rules made there under". As per ....
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....ice in the case of Appeal Nos. ST/205, 204, 221/2010. The Commissioner has opined that "while the existing levy on tour operators engaged in operating tours in tourist vehicles remained as such. In case of a package tour (which are planned, scheduled, organize or arranged by tour operators), the cope of the levy is being extended by removing the limitation regarding transportation by tourist vehicles only. Such tourist operators would be subjected to service tax irrespective of the mode of transport used during such tours. However, M/s. Ideal were providing vehicles/buses to their customers, under an agreed written contract during the period specified therein for an agreed commercial consideration for transportation of the company/factory employees, at specified places through specified routes and timings. As per the said contract, M/s. Ideal had no authority to pick-up or drop the said persons covered by the contract at any place / route of their choice nor did they have flexibility to alter the route or timings according to their own choice or whims and fancies. Therefore the employees of only those companies/factories etc. who had entered into a contract with M/s. Ideal had the ....