2018 (1) TMI 1130 - AT - Service Tax

Classification of services - Tour Operator Service - Department took the view that the vehicles operated by the appellants are covered by permits issued by 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 - extended period of limitation - Held that - Appellant has conceded his liability for part of the period; there can then be no reason why such liability will not extend to the entire period covered by the notice. Accordingly, the tax liabilities will be demandable for the periods 1.4.2000 to 07.10.2004 and October 2005 to March 2007 - SCN not hit by limitation. Grant of cum tax benefit - 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 (4) TMI 7 - MADRAS HIGH COURT wherein the matter had been settled - plea of cum duty benefit is granted - penalty set aside. Appeal allowed in part.

Issues:
1. Liability of service tax on point to point services operated by appellants.
2. Applicability of limitation period in the case.
3. Imposition of penalties under various provisions of law.

Analysis:

Issue 1: Liability of service tax on point to point services operated by appellants
The Department contended that the vehicles operated by the appellants for point to point services are covered by permits issued by Transport authorities under the Motor Vehicles Act, thus falling under the category of "tour operator service." Show cause notices were issued proposing a demand of service tax under this category. The appellants conceded tax liability for the period in question but sought cum tax benefit as they had not collected service tax from their customers. The Tribunal acknowledged the confusion surrounding the taxability of such services during the relevant period and granted the plea for cum tax benefit, citing a precedent judgment by the Hon'ble Madras High Court. The Tribunal held that the tax liabilities for the specified periods would be demandable, but cum tax benefit was granted as the appellants had not collected service tax from customers.

Issue 2: Applicability of limitation period
The appellants argued that the proceedings were time-barred as they had informed the department about the non-applicability of service tax to ordinary contract carriages before the issuance of show cause notices. However, the Tribunal held that the letter sent by the appellants could not be a valid argument for setting aside the demand beyond the normal limitation period. The Tribunal ruled that the demand for the entire period covered by the notices was valid, rejecting the contention that the proceedings were hit by limitation.

Issue 3: Imposition of penalties
The appellants contended that penalties imposed on them were unjustified as their omission was based on a bona fide belief that their activities did not fall under the service tax net. The Tribunal set aside penalties imposed under Sections 76 and 78 of the Finance Act, 1994, citing the confusion prevailing during the relevant period regarding taxability. However, the penalty under Section 77 was upheld. The Tribunal found merit in the appellant's plea and ruled in their favor, granting cum tax benefit and setting aside certain penalties while upholding one penalty under the relevant provisions of law.

In conclusion, the appeals were disposed of with the Tribunal upholding the tax liabilities for the specified periods but granting cum tax benefit to the appellants. Penalties under certain sections were set aside, while one penalty was upheld.

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