9911796707
TMI Blog2007 (6) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 as name of passengers, R.S. No. Tour, Seat, Rate, Amount etc., besides details such as bus number, date, bus owner, From, To, Time etc. issued at places such as Jaipur and Ajmer. According to the learned counsel, these documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 place to another irrespective of the distance between such places. 4.1 The Revenue relies upon the following pronouncements of the Hon'ble High Courts. contending that the appellant renders the services of "tour operator" which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Admittedly, the appellant has not filed return. If that be so, under Section 73 proceedings can be initiated for a period beyond six months." 7. Revenue also relies upon the Hon'ble Karnataka High Court's decision in Suresh Kumar Sharma v. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 as "tourist vehicle". - 12. Form R.S.5017 (which refers to All India Tourist Permit issued under Rule 5.9(x) as issued to the appellant by the Office of the State/Regional Transport Authority) has been issued on the basis of certain specifications/conditions as referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e" 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 as laid down by the Hon'ble Madras High Court in Secretary Federation of Bus-Operators Association of Tamil Nadu (supra), has a bearing in the present case as well, since the appellants have sought to declassify the vehicles which have been held as 'tourist vehicles' so as to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty 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 that non-filing of the returns could not be a reasonable cause for levying penalty especially since the Central Government is satisfied that the practice followed by them was generally prevalent at the relevant time. We, therefore, direct the adjudicating authority to take into account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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