2023 (1) TMI 1047 - AT - Service Tax

Levy of service tax - Tour Operator Service - case of Revenue is that appellant recovered the actual ticket fares from the customers but paid only the agreed price to the Airlines, which was much less than the ticket cost - Whether the activity undertaken by the appellant would get covered under taxable service provided under tour operator service? - extended period of limitation - HELD THAT - As per the agreement the appellant conducting tours, offering specially designed package tour to their customers and are operating as Tour Operator and are booking tickets as per the agreement. Whereas they are paying service tax under the category of Air Travels Agent Service however appellant are liable for payment of Service tax on the total value of ticket which includes the cost of package tour provided by Appellant under the category of Tour operator Service . The Tour Operator has been defined under Section 65(115) ibid to mean any person engaged in the business of planning, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made there under . The scope of service was substantially enhanced by the Finance Act (No.2) of 2004 by including the person who are engaged in planning, scheduling, organizing or arranging tour by wherever means like rail, air, waterway, etc. - On a conjoint reading ibid, it reveals that the person providing business of planning, scheduling, organizing or arranging tours should fall under the ambit of taxable category of Tour Operator Service for the purpose of payment of service tax. On perusal of the disputed package features, it is clear that prima-facie appellant is not providing any consultancy in the nature of planning, scheduling, organizing and arranging tour on behalf of the particular tour for the passengers. Extended period of limitation - HELD THAT - The Appellant were paying service tax under the category of Air Travel Agent Service and also filed ST-3 accordingly. The adjudicating authority have not properly examined the fact whether there is a suppression of facts or otherwise. Accordingly, the issue of limitation was also not considered properly. Appeal is allowed by way of remand to the adjudicating authority.

Summary

Issues:
1. Whether the activity undertaken by the appellant falls under taxable service provided under "tour operator service."

Analysis:
The appellant, engaged in the business of Tour Operator and Travel Agent, provided specially designed tourist packages with additional charges for stay, meals, and sightseeing. The department observed discrepancies in the amount charged from customers and the amount paid to airlines, leading to a demand for service tax. The appellant argued that they were merely operating tours without planning or organizing them, citing previous judgments. They contended that the complimentary packages provided did not constitute taxable services under Tour Operator Service. The appellant also claimed abatement under Notification No. 01/2006-ST if charges were accepted. The department maintained that the appellant should pay service tax under the category of "Tour Operator Service" for the total value of the ticket, including the package tour cost.

The Tribunal analyzed the definition of "Tour Operator" under Section 65(115) and noted that the appellant did not provide consultancy for planning, organizing, or arranging tours. Referring to the Jet Airways case, the Tribunal held that similar tour packages offered by airlines were not covered under Tour Operator Service. They directed the reconsideration of the matter by the adjudicating authority in light of the appellant's relied-upon judgments. The Tribunal also highlighted the need to reexamine the limitation issue and the proper examination of facts regarding suppression. Consequently, the impugned order was set aside, and the appeal was allowed by remand to the adjudicating authority for a fresh assessment, ensuring the appellant's right to submit documents and have a personal hearing.

The judgment emphasized that all issues should be reconsidered, granting the appellant a fair opportunity for representation and documentation. The decision was pronounced on 23.01.2023 by the Appellate Tribunal CESTAT AHMEDABAD, comprising MR. RAMESH NAIR, MEMBER (JUDICIAL), and MR. RAJU, MEMBER (TECHNICAL). The appellant's arguments, supported by legal precedents and interpretations, played a crucial role in the Tribunal's decision to remand the case for further evaluation by the adjudicating authority.