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TMI Blog2007 (6) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... st vehicles" covered by the permits issued under Section 88(9) of the Motor Vehicles Act, 1988. The Commissioner (Appeals) also held that penalties imposed under various Sections by the adjudicating authority have rightly been imposed on the appellant. 3. Aggrieved by the said order, the learned counsel for the appellant raises the following contentions :- 3.1 The appellant has been using its vehicles only as "stage carriages" i.e. picking and dropping passengers on the way between the place of departure and destination. To prove this point, the learned counsel has produced before us a bunch of documents reportedly issued by their "travel agencies" indicating the bus-wise and date-wise journeys. These documents contain details such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has used them as "contract carriage" or "stage carriage". According to him, to be eligible for use as "contract carriage", there are certain eligibility criteria as defined under Section 2(43) of the Act. Here the "tourist vehicle" would mean a contract carriage constructed or adapted and clubbed and maintained in accordance with such specifications as may be prescribed in this behalf. It was contended that once the authorities approved the vehicles with such specifications as "tourist vehicle", the person engaged in the business of operating "tour" would be squarely covered under the tax net. In this context, it was clarified that the word "tour" as defined under clause (94) of Section 65 of the Act would mean a journey from one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage". 6. The learned counsel for the appellants also argued that the show cause notice issued on 27-5-2004 with reference to the period from 1-4-2000 to December 2003 is clearly time barred. In this context, the Revenue placed its reliance on this Tribunal's order in Ruttonsha Internil Rectifier Ltd. v. Commissioner of Central Excise and Customs, Vadodara, reported in [2006 (3) STR 76 (Tri.-Mumbai) = 2003 (160) E.L.T. 947 (Tribunal)] by referring to para 2 of the said order which reads as under :- "2. The contention raised by the appellant is that no notice could be issued beyond the period of six months without referring to any special reason for that and the show cause notice is not liable to be accepted as it is time barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention is that, the services rendered in this regard cannot be made liable to service tax. 11. We are not impressed with this stand of the appellant, because the provisions under clauses (94), (95) and (96) of Section 65 of the Act and also the definition of 'taxable service' as available under clause (90) of Section 65 read together and the definition as available under the Motor Vehicles Act, 1988 in respect of contract carriage (7) tourist vehicle (43) all go together to stale that it is not necessary how the vehicle had been used or abused. In our view, what is important here is whether the vehicles are capable of being used as "tourist vehicles" and whether the same has been permitted by the appropriate authorities for such use a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king enquiries about the real nature of business carried out by the appellant by virtue of the permit already obtained from the concerned authorities. In our opinion, once the concerned authorities have permitted the appellants for using a particular vehicle as a "tourist vehicle" having verified the various parameters, such a vehicle by virtue of its being used otherwise cannot be declassified and treated as a "non-tourist vehicle". We, therefore, hold that once the specifications make a particular vehicle eligible to be a "tourist vehicle" and further an authority endorses such a classification, how the same is put into use by the permit holder, would not materially change the position under the law. In this connection, the legal position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment of tax by them which would alter the amount assessed in the impugned order and would also have a consequent effect on the penalty stands imposed under the said order. It is, therefore, necessary that this aspect has to be taken note of while arriving at the quantum of tax/penalty in the subject case. To this extent we order remand of the matter to the adjudicating authority to go through the changed provisions under the law particularly with reference to Notification No. 15/2007 issued under Section 11C of the Central Excise Act read with Section 83 of the Finance Act so as to re-determine the quantum of tax and penalty leviable on the appellants. The appellants have also pleaded for benefits under Section 80 of the Act contending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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