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2014 (3) TMI 606 - AT - Service TaxDemand of service tax - Tour operator service - Liability on seat reservation charges - Penalty u/s 76 & 78 - Held that - The Bus reservation agreement is for booking of the buses for the tours undertaken to Nasik, Ellora, Ghrisneshwar, Siddharth Garden, etc. and the tour starts at 5.00 a.m. on 22/11/2007 and concludes at 7.00 p.m. on 23/22/2007. Thus, the bus reservation is for conduct of the tours and therefore, it forms rightly part of the tour operator services as defined in law. Two penalties have been imposed, one under Section 76 and another under Section 78. Section 76 penalty is imposable if there is a delay or default in payment of service tax and no mens rea is required to be proved. However, imposition of penalty under Section 78 is for suppression of facts, collusion, fraud etc. In this particular case, since the activity has been in dispute since 2004, the department cannot allege suppression or willful mis-statement of facts. Therefore, the penalty under Section 78 is neither justified nor warranted in the circumstances of the case - Following decision of CHOUDHARY YATRA CO PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE. NASHIK 2012 (11) TMI 251 - CESTAT, MUMBAI - Decided partly against assessee.
Issues: Classification of services as 'Tour Operator Service' or 'Rent-a-Cab Services', Liability to discharge service tax on bus reservation charges, Imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.
Classification of Services: The appellant contended that their services should be classified as 'Rent-a-Cab Services' instead of 'Tour Operator Service' for the period before 01/06/2007. They argued that they were discharging service tax on Rent-a-Cab Services from 01/06/2007 onwards. The appellant relied on previous tribunal decisions to support their claim. However, the Revenue argued that the entire activity of the appellant should be considered a single activity under 'tour operator services' without segregating bus reservation charges. The Tribunal examined the bus reservation agreement and concluded that bus reservation was an integral part of the tour operator services. The Tribunal also noted that in a previous case involving the appellant, it was held that service tax liability existed on bus reservation charges under tour operator services from 10/09/2004. Consequently, the Tribunal upheld the classification of bus reservation charges under tour operator services. Liability for Service Tax: The appellant was found liable to discharge service tax on the bus reservation charges collected by them under the category of tour operator services. The Tribunal upheld the confirmation of service tax demand on bus reservation charges and sustained the liability to pay interest on the confirmed service tax demand. Penalties Imposed: Two penalties were imposed on the appellant under Sections 76 and 78 of the Finance Act, 1994. The penalty under Section 76 is for delay or default in payment of service tax without requiring proof of mens rea. The penalty under Section 78 is for suppression of facts, collusion, or fraud. The Tribunal noted that since the activity had been in dispute since 2004, there was no evidence of suppression or willful misstatement of facts. Therefore, the penalty under Section 78 was deemed unjustified and unwarranted, leading to its setting aside. The Tribunal upheld the penalty under Section 76 but modified the penalty under Section 78. Conclusion: The Tribunal upheld the lower appellate authority's order with the modification of setting aside the penalty imposed under Section 78 of the Finance Act, 1994. The appeal was dismissed except for the modification regarding the penalty.
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