2011 (2) TMI 664 - AT - Service Tax

Waiver of pre-deposit - tour operators service and business auxiliary service partly - From the document it appears that the appellant was using atleast one bus belonging to M/s. Bharti Trade Links Pvt. Ltd. as a tourist bus covered by a tourist permit issued by RTO atleast for the period upto 5-1-2001 covering part of the period of dispute - The above documentary evidence has to be read with the appellant s statement given under Section 14 of the Central Excise Act - further note that in their reply to the show-cause notice the appellant admitted tax liability to the extent of Rs. 1, 38, 861/- (including interest) for the period 2002-03 and 2003-04 under the head tour operators service. - Stay granted partly.

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery for service tax and penalty.
2. Classification of appellant as a 'tour operator' and liability to pay service tax.
3. Interpretation of documentary evidence regarding tourist permits.
4. Relevance of previous tribunal decisions in the current case.

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for service tax and penalty amounting to Rs. 8,45,893/- and an equal penalty. The appellant admitted tax liability for 'business auxiliary service' but contested liability as a 'tour operator' for transporting passengers between Pune and Mumbai Airports. The tribunal directed a pre-deposit of Rs. 1,50,000/- based on evidence supporting tax liability for a part of the dispute period.

2. The dispute centered on whether the appellant qualified as a 'tour operator' under Section 65(52) of the Finance Act, 1994, and was liable to pay service tax. The appellant argued that as the buses used were not covered by tourist permits, they should not be considered 'tour operators.' However, the Revenue contended that the appellant operated under a 'contract carriage permit,' supported by documentary evidence of a tourist permit held by the bus owner, indicating the use of a tourist bus for the service.

3. The tribunal examined documentary evidence, including a tourist permit valid until 5-1-2001, held by M/s. Bharti Trade Links Pvt. Ltd., the owner of a bus used by the appellant. This permit, along with the appellant's statement under Section 14 of the Central Excise Act and admission of tax liability for 'tour operators service,' indicated the use of a tourist bus covered by a permit during part of the dispute period.

4. Despite the appellant citing previous tribunal decisions as precedent, the tribunal found them irrelevant due to substantial evidence supporting the tax liability imposed by lower authorities. The tribunal emphasized the appellant's payment of Rs. 50,000/- towards service tax for 2002-03 and directed a pre-deposit of Rs. 1,50,000/- based on the established liability. The decision required compliance within a specified timeframe.

This detailed analysis covers the issues of waiver of pre-deposit, classification as a 'tour operator,' interpretation of documentary evidence, and the relevance of previous tribunal decisions in the context of the legal judgment delivered by the Appellate Tribunal CESTAT, Mumbai.