2015 (10) TMI 458 - AT - Service Tax

Business Support Service - freight charges (luggage booking charges) recovered by the appellant for transportation of goods on its buses. Held That - it quite clear that transport of goods on the buses would not come under the category of BSS merely because the goods transported belonged to businessmen, indeed the inclusive part of the above definition leaves no scope for doubt in this regard. - Demand set aside. Tour operator service - appellant contended that it operated its buses as stage carriages does not alter the category of its buses from contract carriages to stage carriages. - Held that - it would appear that the impugned service rendered by the appellant using a contract carriage would fall under the category of tour operator service. the case is remanded to the adjudicating authority for de novo adjudication on the limited aspect of eligibility of the appellant for the benefit of exemption under Notification No.20/2009-ST, dated 07.07.2009 as made applicable with effect from 01.04.2000, invokability of the extended period and imposability of mandatory penalty under Section 78 ibid. - Decided against the assessee.

Issues:
1. Confirmation of service tax demand under "Travel Agent and Tour Operator" service and Business Support Service (BSS).
2. Applicability of extended period for demand confirmation.
3. Contention regarding retrospective effect of Notification No.20/2009-ST.
4. Classification of service under tour operator service.
5. Eligibility for exemption under Notification No.20/2009-ST and imposition of penalties.

Analysis:
1. The appeal challenged the confirmation of a service tax demand under "Travel Agent and Tour Operator" service and Business Support Service (BSS). The appellant disputed the demand under tour operator service by arguing that it operated buses as contract carriages, not stage carriages, and thus was not providing tour operator service. The demand under BSS was contested as the service of booking luggage on buses did not fall under BSS but under Goods Transport Agency (GTA) service. The Tribunal found the demand under BSS unsustainable as the service did not meet the criteria defined under Section 65 (104c) of the Finance Act, 1994.

2. The issue of the applicability of the extended period for confirming the demand was raised. The appellant argued that the confusion regarding the leviability of service tax on the service rendered made the extended period invocation invalid. The Tribunal considered this argument and remanded the case for de novo adjudication without expressing any opinion on the applicability of the extended period.

3. The appellant relied on the retrospective effect of Notification No.20/2009-ST to support their case. The Tribunal acknowledged this argument and remanded the case for further examination on the eligibility of the appellant for the benefit of the said Notification, considering the vehicles involved were tourist vehicles, not stage carriages.

4. The classification of the service under tour operator service was a crucial aspect of the appeal. The Tribunal noted that the appellant, operating buses as contract carriages, fell under the category of tour operator service. Citing a previous judgment, the Tribunal remanded the case to determine the eligibility of the appellant for the benefit of the exemption under Notification No.20/2009-ST.

5. Lastly, the eligibility for exemption under Notification No.20/2009-ST and the imposition of penalties were key issues. The Tribunal upheld the demand of a specific amount while setting aside the demand under BSS. The case was remanded to the adjudicating authority for a fresh determination on the eligibility of the appellant for the exemption, considering the retrospective effect of the notification, and the applicability of penalties under Section 78 of the Finance Act, 1994. The re-computation of demand and penalties was directed based on the findings of the adjudicating authority on these aspects.

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