2009 (6) TMI 40 - AT - Service Tax

Tours and Travels - Tourist Vehicle Appellant contended that Using of buses for transport of employees is not tourist operation. What is tourist operation is defined u/s 65 (52) . Such operation is in respect of engagement in the business of providing tours and travels in a tourist vehicle covered by a permit granted in Motor Vehicles Act, 1988 held that This definition has three important elements. First one is that the assessee must have been engaged in the business of operating tours. There is no finding with cogent evidence in the present case. The second element of law is that the tours must be conduct using the tourist vehicle. But the vehicles used in the present case was not tourist vehicle. The third element of law is that the vehicle must have been under the grant of a permit under Motor Vehicles Act to conduct tourism business. There is also no evidence on record in this respect. Demand Set aside by following the decision in the matter of Secy. Federn. Of Bus-Operators Assn. of T.N. Vs. Union of India - 2005 -TMI - 55 - HIGH COURT MADRAS

Summary

Issues:
Interpretation of the term 'tour operator' under Section 65(52) of the Finance Act 1994 in the context of service tax liability for transportation services provided to employees.

Analysis:
The Appellant, represented by Shri O.P. Agarwal, argued that the transportation of employees by the Appellant's buses did not constitute a tourist operation as defined under the Finance Act 1994. It was emphasized that the vehicles used were not tourist vehicles and no permit for such purpose was granted. The Appellant contended that the Authorities misapplied the law by categorizing the transportation of employees as a tour operation without proper evidence or consideration of relevant legal precedents. The absence of an inquiry from the Regional Transport Authority to establish the nature of the Appellant's vehicles was highlighted as a flaw in the Authorities' decision-making process.

The Respondent, represented by Shri Vijay Kumar, countered by pointing out that contractual arrangements for carriage were in place, making the Appellant liable for service tax. Reference was made to a decision by the High Court of Madras in a similar case to support the position that the Appellant's activities fell under the category of tour operators, thus justifying the imposition of service tax. However, the Appellate Tribunal scrutinized the legal provisions and definitions relevant to the term 'tour operator' under Section 65(52) of the Finance Act 1994. It was observed that for a person to be considered a tour operator, they must be engaged in the business of operating tours using tourist vehicles covered by permits granted under the Motor Vehicles Act 1988.

The Tribunal noted that crucial elements of the definition were missing in the present case. Firstly, there was no evidence to establish that the Appellant was engaged in the business of operating tours. Secondly, the vehicles used were not classified as tourist vehicles. Thirdly, there was no documentation proving that the vehicles were permitted under the Motor Vehicles Act for tourism-related activities. Drawing support from a judgment of the High Court of Madras, the Tribunal concluded that without meeting all three elements of the definition, the Appellant could not be considered a tour operator for the purposes of service tax liability. Consequently, the Tribunal allowed the appeal in favor of the Appellant, setting aside the impugned order and granting any consequential relief due to the Appellant.

In conclusion, the judgment highlights the importance of a comprehensive analysis of legal definitions and requirements in determining the applicability of service tax obligations, particularly in cases involving the classification of entities as tour operators. The decision underscores the necessity for concrete evidence and adherence to statutory provisions before imposing tax liabilities on businesses providing transportation services.