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TMI Blog2015 (11) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... t 10-09-2004. - Decided in favor of assessee. Employees of only those companies/factories etc. who had entered into a contract with M/s. Ideal had the authority to board the buses at pre-determined pick-up points at fixed timings agreed upon and M/s. Ideal had no authority to pick-up or drop any other passenger en-route. Thus, I find from the above that M/s. Ideal were not engaged in the business of planning, scheduling, organizing or arranging package tour of their own as provided under the new definition of 'tour operator' service but were adhering to the conditions laid down in the agreements entered into with various customers. Thus it cannot be said that they were covered under the first part of the amended definition of 'tour operator' also". - activity does not get covered under the 'Tour Operator' Service post 10-09-2004. - Decided in favor of assessee. Activity of organizing picnic tours etc - Held that:- this activity will fall under the ambit of planning, scheduling etc in terms of the first part of the definition irrespective of the fact that the vehicle is not a tourist vehicle. This is because the two parts of the definition are independent and for the activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in Section 2(43) of the Motor Vehicles Act and Rules made thereunder is as below: Tourist vehicle means a contract carriage constructed or adapted and equipped or maintained in accordance with such specifications as may be prescribed in this behalf. The specifications are prescribed in Rule 128 of the Central Motor Vehicles Rules 1989 which states that the Tourist Vehicles shall conform to certain specifications. These specifications relate to dimensions, structures, passenger entrance and exit, emergency exit, driver entry and exit, wind screen, windows, ventilation, lighting, fitting and accessories etc. Thus for a vehicle to be given the permit of a Tourist vehicle there are elaborate specifications to be observed. It goes without saying that the proper authority to decide whether a vehicle is a contract marriage equipped with certain specifications as per Rule 128 of Central Motor Vehicle Rules, is the Regional Transport Office (RTO), who govern the administration of the Motor Vehicles Act. 4.1 We find that in the case of M/s. Jai Somnath Transport, the Dy. RTO, Thane vide his letter dt. 14.2.2006 has categorically stated that the vehicles operated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is treated as a tourist vehicle , it will have to conform to the conditions laid down for the tourist vehicle in Rule 128 of the Motor Vehicles Rules. That would by far be the only condition. . 36. At this stage, all the learned Counsel pointed out that the petitioners' spare buses may not be the tourist vehicles within the meaning of Section 2(43) of the Motor Vehicles Act and, therefore, they are not liable. Indeed, if the vehicles owned by the petitioners are not the tourist vehicles within the meanings of Section 2(43) of the Motor Vehicles Act read with Rule 128 of the rules framed thereunder then, such petitioner would not be required to be registered under the Finance Act. The learned Senior Counsel for the Department very fairly accepted this position. However, he pointed out that it would be for the petitioners to raise their objections before the concerned authorities under the Finance Act and their objections would be decided upon. Therefore, the petitioners are permitted to raise the objections before the concerned authorities issuing the notices and the authorities will decide as to whether the petitioners' vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial question of law - [2010 (17) S.T.R. 513 (SC). We note that the basic observation in all the judgments is that the vehicle should meet the specifications of Tourist vehicles as specified under Rule 128 of the Central Motor Vehicles Rules. 4.5 Ld AR interpreted the judgement in Secy. Federn. Of Bus-Operators Assn. of T.N. to mean that all contract carriages will be covered under the definition of tourist vehicles. This is clearly a fallacious reading of the judgement. We seen on reading the whole judgement that the underlying view being expressed throughout is that for a vehicle to be called a Tourist Vehicle, it should be a Contract carriage constructed or adapted and equipped in accordance with the such specifications prescribed under Rule 128 of the Motor Vehicles Rules. It was held that However, it must be remembered that in the present case, we are not concerned with the two kind of permits. The question posed before us is whether a vehicle covered under Section 72(2)(xvii) of the Motor Vehicles Act can be viewed as a tourist vehicle. The question is not as to whether a permit under Section 88(8) would ipso facto become a permit covering a contract carriage. It has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle or a contract carriage by whatever name called, covered by a permit, other than a stage carriage permit, granted under the Motor Vehicles Act, 1988 or the rules made thereunder . Thus the intention to include all contract carriages in the definition was given effect from this date only. 4.7 Revenue, it appears, is confusing the words Tourist permit' and Tourist vehicle' and reading the word 'permit' to mean the same as Tourist permit. Here too the judgement in Secy. Federn. Of Bus Operators Association of T. N. (supra) clarifies the matter beyond doubt. It was held therein that 29. It, therefore, cannot be said that the permit contemplated under Section 65(52) of the Finance Act is a tourist permit alone contemplated under the Motor Vehicles Act or the rules framed thereunder. The argument is obviously based on the faulty logic that in Section 65(51) and (52) of the Finance Act the term tourist vehicle is used and the Motor Vehicles Act provides for the tourist permit under Section 88(9) read with Rules 82 to 85 or under 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle, does not cover the services rendered by the parties in the category of 'Tour Operator'. We find in some cases such as SK Travels and Buthello Travels, and the SCN only referred to the second part of the definition even for the period post 10.09.2004. The findings by the Commissioner in the Orders in respect of these parties and in the case of Jai Somnath do not explain at all how and whether the activity is covered by the first part of the definition. In such cases the appeals fail as held in para 4 above. 5.1 In other cases we may examine whether the appellants are engaged in the business of planning, scheduling, organizing or arranging tours. We have seen the Agreements between appellants and their clients. We find that the appellants have only planned for providing vehicles of a specific capacity with a particular schedule. We also note that at the time of expansion of the definition of Tour Operator on 10/09/2004, CBEC Circular No. 80/10/2004-ST dated 17/09/2004 clarified that while the existing levy on tour operators engaged in operating tours in tourist vehicles remain as such, in case of a package tour (which are planned, scheduled, organized or arranged by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heduling, organizing or arranging package tour of their own as provided under the new definition of 'tour operator' service but were adhering to the conditions laid down in the agreements entered into with various customers. Thus it cannot be said that they were covered under the first part of the amended definition of 'tour operator' also . 5.3 In appeal No. ST/304/2010 of Moharir Travels too, the adjudicating authority observed that the appellant had no liberty under the contract to plan, schedule, organize or arrange trips at his own whims or convenience. The same reasoning applies in the case of Lawrence Travels. 5.4 In the case of General Travels the same view was taken by the Commissioner Appeals Mumbai-1 that such trips cannot be held to be planned, scheduled, organized etc. We are not informed that Revenue has challenged this decision. 5.5 Therefore, in our considered view, the activity does not get covered under the 'Tour Operator' Service post 10-09-2004. 5.6 In the case of General Travels the demand is confirmed on the ground that the tours were organized for picnics etc. Therefore this activity will fall under the ambit of planning, s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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