TaxTMI 
TaxTMI 
2026 (6) TMI 898
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....dated 23.08.2013. The grounds urged in the appeal filed by Revenue include the point that it has left out the service tax demand for the period April, 2005 to September, 2005 and has not confirmed service tax demands for the period October, 2005 to November, 2007 by invoking the extended period of limitation under the proviso to section 73(1) of the Finance Act, 1994 and for non-imposition of consequent penalties on the appellant. 1.3 Central Board of Indirect Taxes & Customs (CBIC), Ministry of Finance have issued Notification No. 02/2017-Central Tax dated 19.06.2017, as amended. Vide this notification dated 19.06.2017, CBIC have prescribed the territorial jurisdiction of the Principal Commissioners/Commissioners of Central Goods and Service Tax & Central Excise for various Commissionerate's across the country in exercise of the powers vested read with it under Sections 3 and 5 of the Central Goods and Services Tax Act, 2017 read with Section 139 ibid. As per the said notification dated 19.06.2017, each of the Commissionerate is provided with specific jurisdiction, which inter alia contain particular Pin code numbers for the areas covered and tax payers falling under such area,....
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.... 78 of the Act of 1994 should not be imposed for various omissions on the part of the appellant and under Rule 7C of the Service Tax Rules, 1994 for the failure to file proper and correct returns. 2.4 The said SCN dated 18.04.2011 was adjudicated by the learned Commissioner vide impugned order dated 23.04.2013 in confirmation of the service tax demand only for the normal period covering from October, 2009 to September, 2010 by dropping the service tax demand for extended period. Further, he did not impose any penalty on the appellant under Section 76, 77 and 78 ibid. Feeling aggrieved with the impugned order, both the appellant and Revenue have filed these appeals before the Tribunal. 3.1 Learned Advocate for the appellant submitted that they organize pre-planned package tours. In other words, the appellant schedules a tour based on their understanding, costing, travel seasons, availability of flights, hotels etc. and prepares a "pre-planned package tour" to be offered to the customer for sale. Some customers come in groups and they want a tailor made program of package tour by specifically mentioning location, preference of food, hotel for stay etc. and seek the appellant to....
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....rther, he claimed that service tax is a destination-based consumption tax for which the place of provision of service has to be determined for levy of tax on the same. In the absence of machinery provision for collection of tax for services provided in J&K and by considering the nature of tour operator service, he pleaded that the services provided by the appellant completed at the place where it is provided i.e., in J&K being outside the purview of the Finance Act, 1994, no service tax is liable to be paid by the appellant. Thus, he submitted that on the above basis, the appeal preferred by them be allowed. 4. Learned Authorized Representative (AR) had submitted that nature of services provided by the appellant fall under the definition of 'tour operator service' under Section 65(115) of the Finance Act, 1994. Further, since the consideration for the service was received in Indian Rupees, he stated that it cannot qualify as export under Export of Service Rules, 2005. He reiterated the stand of Revenue that in the impugned order, the learned Commissioner had mistakenly failed to impose the service tax for the entire period of demand by invoking the extended period and had not im....
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....s of section 64(1) of the FA-94...... xxx xxx xxx xxx 36.1 I now consider the various other submission, above, made by them (Noticee), item-wise. (1) As urged above, that demand is raised on the basis that the service flows in India in case of services provided by a tour operator located outside J&K to a person who is also located outside J&K, that (allegedly) as the service flows outside J&K, therefore ST is chargeable; (and) without however, considering the fact that the services are consumed in the state of J&K. SCN is not tenable. This matter falls in a narrow compass of determination. Briefly, I find that, as discussed at length foregoing and righty urged by them, that ST being a destination-based consumption tax, the same has to be levied necessarily at the place where the services are consumed - accordingly, this allegation is made contrary to the provisions of section 64(1) of FA-94. Hence, not tenable. 37. The issue for determination would appear to go in favour of the Noticee, as discussed at length, foregoing. I also find that the ratio of International Travel House Ltd. vs. CST [2011(22)STR629(Tri.)] would not also be applicable to this case, ....
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....her words, the balance sum of Rs.73,34,204/- only would be due and liable to be paid by them. Of course, this is subject to the outcome on merit, of the other concomitant issues at '(2)', '(3)' and '(4)' above, set for determination in this case, by this Authority, as would be so evident, in this Order, later. The issue set for determination at '(1)' above, thus stands decided accordingly. xxx xxx xxx xxx 43. As discussed above, merely making allegation to invoke applicability of the extended period in the SCN in the light of the said above weighty judgments of the Hon. Courts (also), is not sufficient and proper in order to invoke the extended period; inter alia particularly as the critical elements essential for such invocation are absent and not applicable, as per the record of the SCN; such as, that the mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty; suppression means failure to disclose full information with intent to evade payment of duty; that an incorrect statement cannot be equated with a wilful mis-statement; that there cannot be suppression of facts which....
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....here (serial number and row number is left unnumbered and not recorded in the SCN, for reference). Accordingly, in terms of section of section 73(1) read with section 73(6) of the FA-94, the SCN (dated 18-04-11) would hence at best cover the (period) Oct. '09 upto (including) Sept. 10 only, as shown in the last two rows (serial number not recorded in the SCN) thereof, involving tax implication ("Payable") amounting thereby of the total sum of Rs.25,35,518/- only out of the total ST demand of Rs.1,28,42,071/- only; in other words, the balance sum of Rs.1,03,06,553/- only would not be so due and liable to be paid by them. Hence, the SCN fails on the ground of limitation independently, in part. Of course, this is subject to the outcome on merit, of the other concomitant issues at '(3)' and '(4)' above, set for determination in this case, by this Authority, as would be so evident, in this Order, later. The issue set for determination at '(2)' above, thus stands decided accordingly. 44. The next issue for determination at '(3)' above whether the demand made in the SCN is correct and proper in not considering the essential requirement of takin....
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.... of duly considering the amount collected in March'09 being Rs.1,13,70,000/-, on which ST @10.3% shall be chargeable and ST payable accordingly. The lapse and error in working out and computing the due ST amount payable, on merit, as discussed, is hence clear and evident in the SCN. The non-application of mind of the author of the SCN is evident. Prima facie it is found to be correct and acceptable in principle. However, I find that on facts, they (Noticee) have not submitted any material and evidence to support and sustain their submission, which cannot be decided on the basis of legal principle alone, bereft of the details of the taxable value, corresponding bills, etc. and the returns filed by them during this entire period. It is clear that they have supplied the "Details of Value of Tour to J&K" statement (record) to the department (ACST) dated 21-02-11 which forms the basis for working out the details of the "Gross Value Received" shown in the Table in the SCN; moreover, the said letter is unqualified and clear and is a relied-upon document. It cannot be ignored/disregarded. There is no other material available on record/discernible to substantiate the said facts and atte....
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....; or (b) collusion; or (c) willful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of the FA94 or of the STR with intent to evade payment of ST by the person chargeable with the ST or his agent. This is irrespective of the period involved for such alleged contravention. It has been held above that the allegation made of suppression of facts with the intent to evade the payment of duty by them, is plainly egregious, improper, and bogus without any leg to stand on. In such binding circumstances, the question of imposition of such penalty thus cannot arise. 53.4 Moreover, as rightly urged also, it has been mandated in the fifth proviso (above) to this section as follows: "Provided also that if the penalty is payable under this section, the provisions of section 76 shall not apply". This will apply w.e.f. 10-05-08. The SCN covers period prior to this and subsequent to this also. In any case, no ST is due and payable by them for the period of May'08 or prior to this period, as held foregoing. Furthermore, even assuming for the sake of argument alone, without prejudice, t....
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.... tax; the extent, commencement and application of such levy on the taxable services and the list of activities or services which would come under the scope of 'taxable service' by enumerating specific activities or services, inter-alia, relevant phrases by way of definition have been provided under Sections 66, 64 and 65(105), 65(113), 65(115)/65(48), 65(50), 65(52)/ 65(41), 65(43), 65(44) of the Finance Act, 1994. The levy of service tax on the services provided by a 'tour operator' was introduced in the Finance Act, 1994 for the first time during the Union Budget 1997. Subsequently, the definition of the term 'tour operator' was amended in the Union Budget, 1998 through the Finance Act, 1998 and later in the Finance Act, 2004; Finance Act, 2008. The extracts of these provisions are quoted below : "Finance Act, 1994 Chapter V SERVICE TAX Section 64. Extent, commencement and application. (1) This Chapter extends to the whole of India except the State of Jammu and Kashmir. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (3) It shall apply to taxable services provid....
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....r the rules made under the Motor Vehicles Act, 1988; (2) for section 66, the following section shall be substituted, namely :-- xxx xxx xxx xxx (3) With effect from the date notified under section 84 of the Finance Act, 1997, there shall be charged a :service tax at the rate of five per cent. of the value of the taxable services referred to in sub-clauses (g), (h), (i), (!), (k), (!), (m), (n), (o), (p), (q) and (r) of clause (41) of section 65 which are provided to any person by the person responsible for collecting the service tax."; (41) "taxable service" means any service provided,- (a) to an investor, by a stock-broker in connection with the sale or purchase of securities listed on a recognised stock exchange; (b) to a subscriber, by the telegraph authority in relation to a telephone connection; (c) to a subscriber, by the telegraph authority in relation to a pager; (q) to any person, by a tour operator in relation to a tour; "66. (1) On and from the date of commencement of this Chapter, there shall be charged a tax (hereinafter referred to as the service tax), at the rate of five per cent. of the....
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....any person, by a tour operator in relation to a tour, (2) for section 66, the following section shall be substituted, namely :- *66. (1) On and from the date of commencement of this Chapter, there shall be levied a tax C (hereinafter referred to as the service tax), at the rate of five per cent. of the value of the taxable services referred to in sub-clauses (a), (b) and (d) of clause (48) of section 65 and collected in such manner as may be prescribed. (2) With effect from the date notified under section 85 of the Finance (No. 2) Act, 1996, there shall be levied a service tax at the rate of five per cent. of the value of the taxable services referred to in sub-clauses (c), (e) and (f) of clause (48) of section 65 and collected in such manner as may be prescribed. (3) With effect from the date notified under section 88 of the Finance Act, 1997, there shall be levied a service tax at the rate of five per cent. of the value of the taxable services referred to in sub-clauses (g), (h), (i), (). (k), (I), (m), (n) and (o) of clause (48) of section 65 and collected in such manner as may be prescribed. (4) With effect from the date notified und....
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....by a tour operator to a client, shall be the gross amount charged by such operator from the client for services in relation to a tour and includes the charges for any accommodation, food or any includes the charges for any accommodation, food or any other facilities provided in relation to such tour. 2.2 As per rule 82 of the General Motor Vehicle Rules, 1989 a tourist permit is granted only a tourist vehicle. As per the Motor Vehicles Act, Section 2 (43) a tourist vehicle means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed. The term tour operators covers any person who holds a tourist permit in respect of any vehicle. The service tax on tour operators is on operators who run / operate a tour on a motor vehicle provided that the tour operator holds a tourist permit under the Motor Vehicles Act, 1988 in respect of any motor vehicle. Service tax will be chargeable on all domestic and inbound tourist service provided by a tour operator holding a tourist permit. Service tax will also be chargeable on journeys / tours undertaken by tourist taxis and tourist buses (which also hold tourist permit....
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....words, services as provided that the bill issued for this purpose clearly indicates that it is inclusive of such charges. In other words, service tax would be leviable of 40% of the total amount charged in cases where the tour operator provides a package tour and the price of which mandatory includes charges for accommodation for stay provided during the course of the tour (Notification No. 39/97-ST refers). Further an abatement of 90% from the gross amount charged to the client has been provided where the tour operator provides the services solely of booking or arranging accommodation and the bill issued for this purpose includes cost of such accommodation (Notification No. 40/97-ST refers). However, this abatement will not be allowed in case the bill issued does not include the cost of such accommodation. 2.6 Service tax on services rendered by tour operators is only on services rendered in India in respect of a tour within Indian territory. Services rendered by tour operators in respect of out-bound tourism i.e. for tours abroad, do not attract service tax. In case of a composite tour which combines tour within India and also outside India, service tax will be leviable ....
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....ludes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder; (b) for section 66, the following section shall be substituted, namely :- "66. There shall be Charge of service tax. levied a tax (hereinafter referred to as the service tax) at the rate of ten per cent. of the value of the taxable services referred to in sub- clauses (a), (b),(c), (d), (e), (f),(g), (h),(i), (j), (k), (l, (m), (n), (o), (p), (q), (r), (s), (t),(u), (v), (w), (x), (y), (z), (za), (zb), (zc), (zd), (ze), (zf), (zg), (zh), (zi), (zj), (zk), (zl), (zm),(zn), (zo), (zq), (zr), (zs), (zt), (zu), (zv), (zw), (zx), (zy), (zz), (zza), (zzb), (zzc), (zzd), (zze), (zzf), (zzg), (zzh), (zzi), (zzj), (zzk), (zzl), (zzm), (zzn), (zzo), (zzp), (zzq), (zzr), (zzs), (zzt), (zzu), (zzv), (zzw), (zzx) and (zzy) of clause (105) of section 65 and collected in such manner as may be prescribed."; Finance Act, 2008 (No.18 of 2008) (Assent of the President of India was given on 05.10.2008) (18) for clause (115), the following clause shall be substituted namely:- '(115) "to....
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....or otherwise" and "(ii) whether the appellant is said to be providing the said service within the taxable territory?". These have been elaborately dealt with by the Larger Bench and accordingly the questions referred to it have been answered in the above referred Interim Order dated 19.10.2023. Further, the appellant Travel Corporation of India Limited have also filed miscellaneous application No.85360 of 2013 with a prayer to allow their submission as an intervener in the case heard by the Larger Bench, since it will have a bearing on the appeal filed by them which is pending before the Tribunal. This application was heard by the Larger Bench on 19.04.2023 and applicant was permitted to intervene in the matter. Therefore, the order of the Larger Bench in the M/s Cox & Kings India Limited (supra) will also have an application to the matter being examined in the present case of the appellant. The relevant paragraphs of the said order of the Larger Bench of the Tribunal in the case of M/s Cox & Kings India Limited (supra) are reproduced below: "18. The first issue that has been referred to the larger bench is whether the service that the appellant is providing is....
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....der section 65(43) as under: "(43) "tour" means a journey from one place to another irrespective of the distance between such places" 23. The text of the above provisions have not undergone any change whatsoever, whether prior to 10.9.2004 or post 10.9.2004, except for renumbering of the clause. 24. The definition of 'tour operator' has undergone various changes during different periods, which are as under: "(i) 1-9-1997 to 6-10-1998: (44) "Tour Operator" means a person who holds a tourist permit granted under the rules made under the Motor Vehicles Act, 1988; (ii) 7-10-1998 to 9-9-2004: (44) "Tour Operator" means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder; (iii) 10-9-2004 to 15-5-2008: (115) "Tour Operator" means any person engaged in the business of planning, scheduling, organising or arranging tours (which may include arrangements for accommodation, site-seeing, or other similar services) by any mode of transport, and includes any person engaged in the business of operating tou....
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....duling, 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." 29. This definition can conveniently be divided into two parts: "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 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." 30. In the first part of the definition, "tour operator' has been defined to mean any person engaged in the business of planning, scheduling, organizing or arranging tours by any mode of transport. This, of course, includes arrangements for accommodation, sightseeing or other similar activities. 31. The second part of the definition is e....
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....004 was clearly to explain the definition of a "tour operator' and to bring within its fold any person engaged in the business of planning, scheduling, organizing or arranging tour by any mode of transport. "Inclusive' part would best be interpreted in the normal standard sense to comprise of or consist of. The second part of the definition only removes any doubt that any person engaged in the business of operating tour in a tourist vehicle covered by a permit granted under the Motor Vehicles Act or Rules made thereunder would not be excluded from the definition of a "tour operator' contained in the first part. It needs to be noted that a permit granted under the Motor Vehicles Act or the Rules made thereunder does not operate beyond the jurisdiction of the country. The first part of the definition of a "tour operator' is by any mode of transport and, therefore, there is no restriction about the territorial jurisdiction of the country. It only deals with the planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport. 36. It is, therefore, not possible to hold that wh....
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....Act. It is correct that prior to 10.09.2004 service tax was not leviable, but the definition of tour operator was amended and the amended definition brings within its ambit activity of planning, scheduling, organizing or arranging tours by any mode of transport. 43. Thus, before this larger bench is a reference arising from doubt about the interpretation of "tour operator', as per section 65 (115) of Finance Act (earlier section 65 (52) of Finance Act) intended to delineate the extent to which the "taxable service' envisaged by section 65(105) (n) of Finance Act stretches in the "inclusive' segment of the definition as controlling the rest of the definition when the activity is not limited to "planning, scheduling, organising or arranging tours' but involves utilisation of means of transport. 44. From the analysis and reasons elaborated above, it can safely be deduced that the decision of the Principal Bench in Cox & Kings, based on validation of the Circular of 1997 as not being impacted by the several changes in the definition of "tour operator', may not be applicable in case of "outbound tours' over the period of time that the activity had been taxable. ....
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....as to be expressed as provision of service for another within "taxable territory' for default liability in the hands of provider of service. Therefore, in the dispute before the division bench, geographical significance was not "taxable territory', which could be situated anywhere in the world according to the nature of activity undertaken, but within "whole of India...' without having to look for any other framework. 49. Accordingly, we answer the reference thus: (i) The taxability of activity undertaken by the appellant will have to be decided on the facts peculiar to the case and in accordance with intent of section 65, section 66 and section 67 of the Finance Act; and (ii) The dispute in this appeal, i.e., from 01.04.2005 to 31.03.2011, pertaining to the period prior to the "negative list' regime does not have to consider "taxable territory' as affecting the decision thereon." 9.3 Therefore, in terms of the issues decided by the Larger Bench in the case of M/s Cox & Kings India Limited (supra) vide Interim Order No.104/2023 dated 19.10.2023, in order to decide on the issue of taxability of services rendered by the appellant in respect of 'outbound ....
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....es of permits. 5.3.2 Section 65(115) defining tour operator is being amended so as to include services provided in relation to a journey from one place to another, generally known as point-to-point tour, in a vehicle having contract carriage permit, even if the vehicle does not meet the criteria specified for tourist vehicles. With this amendment, journey from one place to another conducted in a vehicle having contract carriage permit shall be leviable to service tax under tour operator service. Service tax is not leviable under tour operator service only if the tour is conducted in a vehicle having stage carriage permit. Field formations may collect data from transport authorities regarding details of contract carriage permits issued. 5.3.3 It may be noted that services provided in relation to a journey from one place to another conducted in a tourist vehicle having contract carriage permit for use by educational bodies shall be excluded from the scope of the taxable service. Educational bodies do not include commercial training or coaching centres." 10.1 In terms of the nature of services provided by a 'Tour Operator', these service providers can be categoriz....
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....e on Earth" the details of such 7 days package tour consist of itinerary such as 7 days journey starting from Day 1 at Srinagar airport arrival - Day 2 Sonmarg - sledge car ride at exotic snow point - Day 3 Dal Lake of Srinagar - Shikara ride; local temples visit - Day 4 Gulmarg - Gandola cable car ride, horse riding at snow point - Day 5 Pahalgam - explore natural beauty of exotic place - Day 6 Pahalgam - enjoy natural beauty of Chandanwadi - Day 7 Pahalgam and transfer to Srinagar airport departure. Thus, the tour in this case will be wholly performed within the State of J&K, that is outside the scope of the coverage of the Finance Act, 1994. 10.4 The customers who would like to avail such services from the appellant tour operator has to complete a 'Booking Form' which include the requisite details of the individual as passenger with Identity/ Passport & Visa details; Contact information; Accommodation/Hotel pass; tours/ cruises; additional services sought etc. The terms and conditions in providing such services for outbound tour include various clauses covering rates, booking, payment, amendment fee, unutilised services, cancellation & refunds, travel documents, insuran....
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....e means "any service provided, to any person, by a tour operator in relation to a tour". Similarly, the definition of the phrase 'tour' has also remained unchanged from the beginning of the levy on this taxable service. 'Tour' has been defined under Section 65(113) ibid "as a journey from one place to another irrespective of the distance between such places". We have already seen the elaborate discussion of the phrase "tour operator" under Section 65(115) ibid in the earlier paragraphs as discussed by the Larger Bench in the case of M/s Cox & Kings India Limited (supra). On plain reading of the above legal provisions, it is clear that firstly there shall be an activity of 'tour' or journey undertaken from one place to another; and certain services are offered by one person viz., service provider to another person viz., service receiver, wherein the service provider shall fall under the scope of the phrase 'tour operator'; and such services are consumed or utilized by the service receiver, completing the activity of rendering of such service and the provisions of levy of service tax and its application is under the overall frame work of Chapter V of the Finance Act, 1994, to c....
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....ces within the State of Jammu& Kashmir to which the application of Chapter V of the Act of 1994 was not extended to, is not covered within the tax net of the service tax levy under the Finance Act, 1994. 10.7 The instructions issued by the Ministry of Finance while expanding the scope of the phrase 'tour operator' by explaining the changes brough in the Finance Act, 1994 w.e.f. 10.09.2004, also provides guidance on the true nature and scope of the legislative changes brought in by the Government. The said instructions issued to the filed formations states as follows: 17 September, 2004 Issues pertaining to Service Tax - regarding the Finance Bill,2004 The Finance Bill (No.2), 2004 has been enacted on 10.09.2004. With the enactment of the Finance Bill, The following new services have come under the service tax levy,- Business exhibition services Airport services Transport of goods by air Survey and exploration of minerals Opinion poll services Intellectual property services (other than copyrights) Forward contract services Pandal or shamiana services Outdoor catering services ....
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....lowing credit across goods and services (refer Notification No.23/04- CE(NT), dated 10.09.2004). The above changes may be immediately brought to the notice of the field formations and the trade. All possible assistance and facilitation may be provided to providers of such services who have been subjected to the above changes, so that the implementation of these new levies or other changes is smooth and the tax payers do not face any problem in this regard. On plain reading of the above, it transpires that the existing levy on services provided by a tour operator in a tourist vehicle, has been expanded by removing the restriction on usage of mode of transportation from limited 'tourist vehicle' to 'any mode of transport'. The abatement provided at the rate of 60% in case of package tour providing transportation and accommodation would continue to be available to them. Therefore, there is no scope for bring the services provided with respect to tour between two places within the State of J&K, within the service tax net by widening the tax base through the amendments introduced in the Union Budget 2004 10.8 We also find support from the judgement of the Hon'ble Supreme ....