2016 (12) TMI 792 - AT - Service Tax

Rectification of mistake - vehicles of the applicant not being tourist vehicle - trips can be held planning, scheduling and organizing etc or not? - whether the service would fall under the head Tour Operator service or not? - Held that - From the findings of Tribunal Order, it can be seen that the findings in para 5.4 flowing from the Commissioner (Appeals) order, and it is confined to those cases where vehicle was given on hire on fixed period of time for transporting the employees of the client. Therefore mentioned in para 4 is related to only those cases where Commissioner(Appeals) himself dropped the demand. As regard the findings of the this Tribunal in para 5.6, the Tribunal has confirmed that vehicle given for picnic tours, marriages, etc the activity will fall under the ambit of planning, scheduling etc therefore the demand was upheld under the category of tour operator. In view of the combined reading of Commissioner (Appeals) findings and this Tribunal s findings, we do not find any mistake occurred apparently from record. As regard the limitation, we agree that the no findings was given on the issue of limitation in this Tribunal s order - the adjudicating authority in original order held that it is undisputed fact that the activity of the appellant was not brought to the notice to the department. If this is so, department cannot be expected to take any action without knowledge of the activity of the appellant, therefore we hold that the extended period of demand was rightly invoked. Application for ROM disposed off - decided against applicant.

Summary

Issues:
Rectification of mistake in Tribunal's final order dated 6-10-2015; Contradictory findings in the order; No findings on the plea of limitation raised by the applicant.

Analysis:
The applicant filed for rectification of mistake in the Tribunal's final order dated 6-10-2015. The Counsel for the applicant argued that the findings in para 5.4 and 5.6 of the order were contradictory. The Commissioner(Appeals) had concluded that hiring buses for specific purposes like tours, picnics, etc., falls under the category of 'tour operator' service. However, the Commissioner(Appeals) had dropped the demand for hiring vehicles to transport employees to the office, classifying it under 'rent-a-cab' service. The Tribunal upheld the demand based on the Commissioner(Appeals) findings. The Tribunal found no apparent mistake in the order after considering both sides' submissions and perusing the record.

The Commissioner(Appeals) had previously decided in various cases that transporting workers to a common destination for work cannot be considered as planned, scheduled, or organized tours. The Tribunal upheld the demand for specific purposes like tours, picnics, etc., under the 'tour operator' service category. The exemption under Notification No. 4/2004-ST for services provided to SEZs was also deemed applicable. The Tribunal noted that confusion on taxability existed for a long period based on judicial pronouncements and waived penalties under Section 80. The Tribunal confirmed that activities like tours, picnics, marriages, etc., are planned and scheduled, falling under the 'tour operator' service category.

Regarding the issue of limitation, the Adjudicating authority invoked the extended period of demand as the appellant's activity was not brought to the department's notice. The department could not be expected to take action without knowledge of the appellant's activity. Thus, the extended period of demand was deemed rightly invoked. The Tribunal disposed of the application for rectification of mistake accordingly. The order was pronounced in court on 22/11/16.