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TMI Blog2016 (3) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... vices. During the period in question i.e. September, 2004 to January, 2006 appellant entered into a contract with hotels and were offering package tours to their customers who booked the tickets. It is the case of the Revenue that appellant is liable to discharge the service tax liability under the category of tours and Travels service as a "tour operator services" as defined under Section 65(105)(r) of the Finance Act, 1994 and Section 65(19) of the said Act. Show cause notice was issued for the demand of service tax with interest and for imposition of penalty. Appellant contested the show cause notice on merits as well as on limitation. The adjudicating authority after following due process of law, rejected the contentions raised and conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue had cropped up before the Bench in the case of Divisional Controller - 2014 (33) S.T.R. 168 (Tri.-Mum.), and T.N. State Trans. Corpn., Kumbakonam Ltd. - 2009 (14) S.T.R. 760 (Tri.-Chennai) wherein the definition and the requirement of the service provider to get cover under "tour operator service" has been explained by the Bench. It is his submission that by that explanation, the activity undertaken by the appellant would not fall under the category of package tours. He would also submit that during the period in question, the appellant's records were audited by the department auditors and vide Audit Report dated 26-3-2009, the auditor had raised various other discrepancies in the records but never raised any objection as to the activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Kings - 2014 (35) S.T.R. 817 (Tri. - Del.) clearly brings out the activity of the "tour operator services" and the current appellant's activities gets covered under the category of "tour operator services". 5. We have considered the submissions made by both sides and perused the records. 6. The issue involved in this case is whether the activity undertaken by the appellant would get covered as taxable service provided under "tour operator service". Undisputed fact is that appellant is offering Jet Escapes Package to their various passengers who visit their website for booking air travel service offered by them. It is also undisputed that the appellant has entered into a contract with Hotels Chains for accommodating their pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusive of taxes, Airport transfers, Hotel accommodation with breakfast, sightseeing as applicable" but does not indicate that they would plan, schedule or organize the tours for the passengers. Further the definition also mandates for the services to be rendered by persons engaged in business of operating tours in a tourist vehicle or a contract carriage. It is on record that the passengers when they want to opt for "Jet Escapes Package", organize own travel dates and appellant is not helping them in planning or organizing or scheduling of tours. We find that though not on the very same issue, this Bench in the case of Divisional Controller (supra) was considering the services rendered by the appellant therein as to whether this service wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. As the demands are not sustainable, the penalties also do not survive. In these circumstances, the assessees' appeals are allowed and the Revenue's appeals are dismissed." 6.2 The above said ratio as to that tour operator service means the person should be engaged in the business of planning, scheduling or arranging the tours. In the absence of any such activity undertaken, the services cannot be considered as tour operator service and liable to be taxed. The same view is echoed by the Tribunal in the case of T.N. State Trans. Corpn. Kumbakonam Ltd. (supra) wherein the Bench held as under :- "4. I have carefully considered facts of the case and the rival submissions. The impugned demand was issued in the wake of amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy is being extended by removing the limitation regarding transportation by tourist vehicles only. Such tourist operators would be subjected to service tax irrespective of the mode of transport used during such tours. The abatements (Notification No. 39/97-S.T.) in case of package tour operators (providing transportation and accommodation) would remain at 60%." 6.3 The learned departmental representative's reliance on the judgment of the Tribunal in the case of Cox and Kings (supra), we find that the said judgment may not take the Revenue's case any further inasmuch as the issue involved in that case was an outbound tours i.e. tours emanating from India and being sightseeing tours to various countries beyond India would fall un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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