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TMI Blog2013 (6) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... r Vehicle Act to conduct tourism business, but in the present case, the evidences on record does not support the allegations made in the impugned Show Cause Notice. The appellant’s vehicle was not a ‘tourist vehicle’ as contemplated under Section 2(43) of the Motor Vehicle Act, 1988, which is sine qua non for the application of the Finance Act, 1994. Thus, if the subject vehicle was not a ‘tourist vehicle’, the provisions of Finance Act, 1994 would not apply against the appellant and more particularly the provisions of Section 65(115) and the other allied Sections 73, 75 and 76 of the Finance Act, 1994 - Decided in favor of assessee. - Order-in-Appeal No. IND/CEX/000/APP/272/2012 - - - Dated:- 29-8-2012 - Shri Suman Nayar, J. Shri R.C. Saban, Consultant, for the Appellant. ORDER This appeal has been filed by M/s. Shobhan Sarkar Travels, C/o Upendra Tripathi, 65, Prem Nagar, Fort Road, Gwalior (MP) (here in after referred to as the Appellant ) against Order-in-Original No. 44/ST/DEM/AC/ GWL/2011-12 dated 12-12-2011 (herein after referred to as the impugned Order) passed by the Assistant Commissioner, Customs, Central Excise Service Tax, Division-Gwalior (here in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed from them under Section 73 of Chapter V of the Finance Act, 1994; (ii) Interest at the applicable rate should not be recovered from them under Section 75 of Chapter V of the Finance Act, 1994; (iii) A penalty should not be levied upon them under Section 76 of the Finance Act, 1994. 2.5 The Adjudicating Authority vide the impugned Order had disposed off the above said show cause notice and confirmed the demand of Service Tax amounting to Rs. 1,67,230/- and Ordered to recover the same from the appellant under the provisions of Section 73 of Chapter V of the Finance Act, 1994. The interest on the confirmed demand was also ordered to recover from the appellant under the provisions of Section 75 of the Finance Act, 1994. The adjudicating authority vide the impugned Order had also imposed a Penalty on the appellants under Section 76 of the Finance Act, 1994, which shall not be less than Rs. 200/- per day during which such failure continues or at the rate of two per cent of such tax per month, which ever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of Service Tax, provided that the total amount of the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (Tribunal) (b) TNSTC v. Commissioner, reported in 2007 (6) S.T.R. 322 (Tribunal) (c) Prakash Poonam Tours Travels v. CCE, Jaipur-II, reported in 2009 (16) S.T.R. 452 (Tribunal-Delhi) (d) Sri Pandyan Travels v. CCE, reported in 2006 (3) S.T.R. 151 (Mad.) = 2004 (163) E.L.T. 409 (Mad.) (e) Secy. Fedration of Bus-Operators Association of T.N. v. Union of India, reported in 2006 (2) S.T.R. 411 (Mad.) = 2001 (134) E.L.T. 618 (Mad.) (f) T.N. State Trans. Corpn. (Kumbakonam) Ltd. v. CCE, Trichey, reported in 2009 (14) S.T.R. 760 (Tribunal-Chennai) 3.3 That the impugned Order is based on the report submitted by the Range Superintendent vide their letter dated 10-2-2012 without establishing any corroborate evidence on the record by the adjudicating authority. The Hon ble judicial authorities in the following cases had held that without proper furnishing document by revenue ignoring the essentials of natural justice might render the Order a nullity :- (a) Union of India v. Constable Amrik Singh, reported in AIR 1991 SC 564 (Supreme Court) (b) General Spares Industries v. CCE, reported in 1988 (36) E.L.T. 562 (Bom.) (c) Roshan Lal Agarwal v. Union of India, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion . I find that the impugned Order is silent of the aspect that on what grounds the appellant was engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangement for accommodation, sightseeing or other similar services) by any mode of transportation as such the appellant falls under the category of tour operator vide Clause (115) of Section 65 of the Finance Act, 1994. As such the impugned Order holding the appellant, as Tour Operator under Clause (115) of Section 65 of the Finance Act, 1994 is not correct. As per records of the case, I find that the appellant do not fall under the category of tour operator as per first part of the definition as the appellant had not planned, scheduled or organized any tour including arrangement for accommodation, sightseeing or other similar services, accordingly I hold. The second part of the definition is that and includes any person engaged in the business of operating tours in a tourist vehicle covered by permit granted under the Motor Vehicle Act, 1988 (59 of 1988) . As per the second part of the definition, the tour must have been organized in tourist vehicle . To fall in this part, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract anywhere during the journey, and includes - (i) A maxicab; and (ii) A motor cab notwithstanding that separate fares are charged for its passengers. I find that as per above definition of Contract carriage a contract carriage is engaged under a contract entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf. The subject vehicle was not carrying a passenger or passengers for hire or reward. The passengers of the vehicle were not parties to the contract entered between the appellant and M/s. Ranbaxy Ltd., Malanpur. As such the subject vehicle was not covered by a transport permit of contract carriage as per Rule 73(e) in form M.P.V.R. - 49 (CCP) of M. P. Motor Vehicle Rules, 1989, therefore, the subject vehicle may not be covered under the definition of tourist vehicle and the appellant also cannot be treated as tour operator , accordingly I hold. 5.2 I find that the appellant had obtained the permit of vehicle as service vehicle/ordinary Bus for factory employee convenience under Section 76 of M.V. Act, 1988. The definition of Private Service Vehicle has been provided under Rule 2(33) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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