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2011 (11) TMI 264 - AT - Service TaxTour Operators vs Stage Carrier assessee plies buses with Tourist Permits buses from Udaipur to various destinations buses having permit for Tourist Vehicles and not licensed as Stage Carriers as envisaged in Motor Vehicles Act, 1988 non- filing of returns inspite of reminders - Period involved 01.09.97 to 23.12.02 extended period of limitation of 5 years - penalties imposed Held that - Appellant was not operating as stage carrier but was operating as a Tourist Operator for which he was licensed. Further, it is proper to presume that the Road Transport Authorities were conducting the necessary checks to ensure that the Appellant was acting as Tourist Operator only and not as a stage carrier. Tax demanded for the period September 1997 to 17.8.1998 is confirmed inasmuch as prior to 2004, provisions of Section 73, under which the demands stands raised provided for invokation of longer period for non-filing of returns. Service Tax demanded for the balance period is dropped in view of the Notification 20/09-ST, dated 07-07-09 and provisions of section 75 of Finance Act, 2011, providing for exempting the taxable service provided by a tour operator having a contract carriage or tourist vehicle. In such a scenario, no mala fide can be attributed to the appellant with an intent to evade payment of duty. Accordingly, the invokation of penal provision against the appellants is not justified. The penalty imposed u/s 76 and 78 of Finance Act, 1994 upon him are accordingly set aside. - Decided partly in favor of assessee.
Issues Involved:
1. Liability for service tax under the category of "Tour Operators." 2. Classification of the appellant's bus operations as "stage carriers" or "tour operators." 3. Applicability of extended period of limitation for issuing the Show Cause Notice (SCN). 4. Imposition of penalties under Sections 76 and 78 of the Finance Act, 1994. 5. Retrospective exemption from service tax for certain periods. Detailed Analysis: 1. Liability for Service Tax under the Category of "Tour Operators" The Revenue contended that the appellant should have paid service tax under the category of "Tour Operators" as defined under Section 65(113) of the Finance Act, 1994. The appellant was operating buses with Tourist Permits and not as Stage Carriers, which led to the issuance of a Show Cause Notice demanding service tax amounting to Rs. 19,30,935/- for the period 01-09-1997 to 23-12-2002, along with interest and penalties. 2. Classification of the Appellant's Bus Operations The appellant argued that they were operating as stage carriers, where passengers do not determine the time of departure or destination. They relied on various Tribunal decisions, including Usha Breco Ltd. v. CCE, to support their claim that their operations did not constitute "tours" as defined in the Finance Act, 1994. However, the Tribunal noted that the appellant did not possess the necessary permits to operate as stage carriers and was instead licensed as a tour operator. The Tribunal emphasized that the appellant's activities fit the definition of a "tour operator" as given in Section 65(115) of the Finance Act, 1994. 3. Applicability of Extended Period of Limitation The appellant contended that the extended period of limitation should not apply as the SCN was issued long after the department became aware of the facts. However, the Tribunal held that the extended period was applicable due to the appellant's failure to file service tax returns and the suppression of information necessary for quantifying the tax liability. The Tribunal referred to the decision in CCE v. Neminath Fabrics (P.) Ltd. to support this view. 4. Imposition of Penalties under Sections 76 and 78 The adjudicating officer imposed penalties under Sections 76 and 78 of the Finance Act, 1994. The penalty under Section 78 was twice the tax demand, with a minimum penalty equal to the tax evaded. The Tribunal allowed the appellant the option to pay a reduced penalty of 25% of the duty demanded if all dues were paid within 30 days of the order, as per the proviso introduced on 14-05-2003. 5. Retrospective Exemption from Service Tax For the period from 1st April 2000 to 23rd December 2002, the Tribunal considered Notification No. 20/2009-ST dated 7th July 2009, which exempted tour operators from service tax for inter-State or intra-State transportation of passengers. This notification was given retrospective effect from 1st April 2000 by Section 75 of the Finance Act, 2011. Consequently, no service tax was leviable for this period, and penalties for non-payment of service tax during this period were set aside. Separate Judgments Delivered: Technical Member's Judgment The Technical Member upheld the service tax demand for the period from September 1997 to 17th August 1998 but allowed the appellant the benefit of reduced penalties. The member also acknowledged the retrospective exemption for the period from 1st April 2000 to 23rd December 2002, setting aside the service tax demand and penalties for this period. Judicial Member's Judgment The Judicial Member concurred with the Technical Member on the liability for the period from September 1997 to 17th August 1998 but disagreed on the penalties. The Judicial Member argued that the legal dispute involved interpretation of provisions and was not free from doubt, thus setting aside the penalties for the entire period. Final Order: 1. The service tax demand for the period from September 1997 to 17th August 1998 amounting to Rs. 5,01,825/- was confirmed, along with appropriate interest. 2. The service tax demand for the period from 1st April 2000 to 23rd December 2002 was set aside. 3. Penalties imposed under Sections 76 and 78 of the Finance Act, 1994 were set aside.
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