2019 (5) TMI 599 - CESTAT MUMBAI

Non-payment of service tax - Tour operator services - Appellant providing point to point bus service and chartered bus service - demands made on the appellants put in three categories viz (a) Tour Operator Services (Chartered Bus Booking) (b) Tour Operator Service (Point to Point Bus Service) & (c) Advertisement Services.

Tour Operator Service - Point to Point Bus Service - HELD THAT:- Reliance placed in the case of M/S HANS TRAVELS VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2015 (10) TMI 458 - CESTAT NEW DELHI] where it was held that the impugned service rendered by the appellant using a contract carriage would fall under the category of tour operator service - demand upheld.

Tour Operator Services - Chartered Bus Booking - Notification No 20/2009-ST dated 07.07.2009 ,as amended by Notification No GSR 622(E) Dated 31.08.2009 - HELD THAT:- In respect of the Services provided in category of Chartered Bus Booking, we find that these services fall within the exclusion category in the said notification. No other exemption has been pointed out which exempts such services. By putting these services under exclusion category in the Notification it is clear that these category of taxable services are not being exempted - demand do not sustain.

Advertisement Services - Scope of SCN - HELD THAT:- Commissioner has considered the issue by considering the demand under the taxable category defined by Section 65(105)(zzzzm) viz “sale of space or time for advertisement”. He has after referring to the submissions made and definition as provided by Section 65(105)(zzzzm), held the tax to be demandable in that category. Clearly Commissioner has travelled beyond the show cause notice. Since no demand has been made in the show cause notice under this category we are not in position to sustain the order of Commissioner in this respect - Demand do not sustain.

Time limitation - Interest - penalties - HELD THAT:- There are no merits in the submissions made by the appellant against the order of Commissioner, in respect of limitation, interest and penalties - these charges can now be sustained only in respect of the demands which can be sustained on merits i.e. in respect of the Chartered Bus Services.

Refund of service tax - time limitation - HELD THAT:- The bar of unjust enrichment as enshrined in Section 11B still needs to be satisfied before the refund could have been paid to the appellant. The order of Commissioner (Appeal) holding that appellants have passed on the burden of the service tax paid on to the recipient of services has not been set aside in appeal before us. Then it is not understood how in subsequent proceedings in respect of same amounts Commissioner (Appeal) has held contrary - Matter needs to be investigated by the Chief Commissioner, because it is submission of the appellants before us that this appeal is infructuous as the amount claimed as refund by them has already been paid to them.

Appeal allowed in part.