2017 (10) TMI 556 - AT - Service Tax

Classification of services - Tour Operator Service or otherwise - the appellants had provided Bus/Minibus to M/s Indian Petrochemicals Corporation Ltd. (IPCL) for transporting their employees, school children, families from various places to the place of their work, school etc. and received payments thereof from them during 01/04/2002 to 31/03/2006 as intimated by IPCL - whether the Learned Commissioner (Appeals) is correct in holding that the appellant have not provided service under the category of Tour Operator Service as defined in Section 65(115) of the Finance Act, read with Section 65(113) and (114) of the Finance Act? Held that - the activity done by the respondent does not come under the definition of tour operator, which means any person engaged in the business of planning, scheduling, organising or arranging tour (which may include arrangement for accommodation, site seeing or other similar services) by any mode of transport and includes any person engaged in the business of operating tours in a tourists vehicle covered by a permit as granted under the Motor Vehicle Acts and Rules thereunder - it is nowhere case of the Revenue that respondents have used a tourist vehicle as defined under the provisions of the Finance Act read with the Motor Vehicles Act. Merely because the respondents are holding the permit, they do not become liable to service tax for Tour Operator Service. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Whether the appellants provided service under the category of Tour Operator Service as defined in the Finance Act.

Analysis:
The Revenue filed appeals questioning the correctness of the Learned Commissioner's decision that the appellants did not provide services under the Tour Operator Service category as per the Finance Act. The appellants had provided Bus/Minibus services to a company for transporting employees, school children, and families, which the Revenue considered as Tour Operator Service subject to Service Tax. The Revenue alleged non-compliance by the appellants in terms of registration, payment of Service Tax, filing returns, and providing necessary information to the department. Show cause notices were issued, demanding Service Tax, interest, and penalties from the appellants. The adjudicating authority confirmed the Service Tax amounts due from each appellant and imposed penalties under relevant sections of the Finance Act.

The respondents appealed before the Learned Commissioner (Appeals) arguing that transporting employees and children from residence to workplace/school did not fall under taxable Tour Operator Service. They contended that the presumption of providing tour operator service to the company was unfounded. The Learned Commissioner allowed the appeal, stating that the transportation activities did not meet the definition of a tour as per the Act. The involvement of a tourist vehicle, as required for tour operators, was absent in this case. The vehicles were used for daily transportation of employees, which did not qualify as tour operator service. Reference was made to a Tribunal ruling supporting this interpretation.

The Revenue appealed to the Tribunal, asserting that the transportation of the company's employees constituted a tour under the contract terms and fell within the tour operator service definition. After hearing both parties and examining the records, the Tribunal concluded that the respondents' activities did not align with the tour operator definition. The Revenue failed to establish the use of a tourist vehicle as required by the Finance Act and Motor Vehicles Act. The Tribunal cited a Madras High Court case where similar activities were deemed not covered under tour operator service. Consequently, the appeals by the Revenue were dismissed, and related objections and applications were disposed of accordingly.

In summary, the Tribunal ruled in favor of the appellants, determining that their transportation services for the company's employees and children did not constitute Tour Operator Service as defined in the Finance Act. The absence of a tourist vehicle usage and the nature of the transportation activities led to the dismissal of the Revenue's appeals. The decision aligned with previous legal interpretations and established that mere possession of permits did not automatically subject the appellants to service tax for tour operator services.