2017 (10) TMI 1048 - AT - Service Tax

Tour operator service - Department took the view that the vehicles operated by the appellants are covered by permits issued b the Transport authorities under the Motor Vehicles Act and the point to point services operated by them would be liable to be classified under the category of tour operator service - Time limitation - Held that - There is no allegation that appellant had collected service tax from their customers but had not paid the same to the exchequer. It is also a fact that the issue of taxability in respect of stage carriages/contract carriages and tour operators was mired in confusion during impugned period and only after the judgment of the Hon ble Madras High Court in Secretary, Federation of Bus Operators Association of Tamil Nadu Vs UOI 2001 (134) ELT 618 (Mad.) wherein the matter had been settled - extended period not invoked. Penalties imposed on the appellant under Sections 76 and 78 of the Finance Act, 1994 are also set aside.

Summary

Issues:
1. Tax liability on point to point services operated by appellants under the category of "Tour Operator Service."
2. Limitation period for the issuance of show cause notices.
3. Appellant's request for cum tax benefit and penalties imposed.

Analysis:

Issue 1: Tax liability on point to point services
The Department contended that the appellants' vehicles, operated for daily trips to Tirupati and Pondicherry, are covered by permits issued by Transport authorities under the Motor Vehicles Act and should be classified under "tour operator service." Show cause notices were issued proposing service tax demand. The appellants accepted tax liability for the period October 2005 to March 2007 but contested the demand for the period 1.4.2000 to 07.10.2004. The Tribunal held that the tax liabilities for both periods were demandable, citing confusion in taxability during the impugned period. The appellants were granted cum tax benefit as they had not collected service tax from customers.

Issue 2: Limitation period for show cause notices
The appellants argued that the proceedings were time-barred as they had informed the department in 2003 about service tax inapplicability to ordinary contract carriages. However, the show cause notice was issued in 2005. The Tribunal rejected this argument, stating that the dispute arose almost three years earlier, making the 2003 communication irrelevant to the limitation issue. The Tribunal upheld the demand for the entire period covered by the notice.

Issue 3: Cum tax benefit and penalties
The appellants sought cum tax benefit for not collecting service tax from customers and argued against penalties, claiming a genuine belief that their activities were not taxable. The Tribunal granted cum tax benefit due to the confusion in taxability during the relevant period and set aside penalties under Sections 76 and 78 of the Finance Act, 1994, while upholding the penalty under Section 77.

In conclusion, the Tribunal upheld the tax liabilities for the periods in question, granted cum tax benefit to the appellants, and set aside certain penalties imposed. The appeals were disposed of accordingly.