9911796707
TMI Blog2016 (7) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... education cess in terms of Section 73(1) of Finance Act, 1994 in respect of the petitioner for financial years 2004-05, 2005-06 and 2006-07, and penalty as provided under Sections 70, 76 and 78 of the Finance Act, 1994. Petitioners also seek for a declaration that they are not exigible for service tax liability for the aforesaid period. 2. The short facts involved in the writ petition would disclose that the 1st petitioner claims to be engaged in the business of letting contract carriage vehicle on hire as per the requirements of customers. According to the petitioners, they are not providing any other service other than giving on hire the vehicle. 3. Steps were taken by the Superintendent of Excise, Alleppey for registering the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave carefully gone through the records of the case. This appeal is filed not on merits but on limited question of judicial discipline. My predecessor Commissioner (Appeals) remanded the matter with the following remark. "The lower authority is directed to conduct a detailed enquiry and collect evidence to establish whether the appellant are just owners of contract carriages, letting out vehicles on hire and are not engaged in any other service in which case, as per observations of the Hon'ble High Court there would not be any liability at all. The appellants are allowed to make any fresh submissions, in support of their contentions, before the lower authority." Against this Order-in-Original has noted that it is not disputed that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had been passed. It is submitted that though an appeal is provided, there is no reason to challenge the order on merits as the only question to be considered is whether petitioners come within the framework of 'tour operator' during the relevant time. Hence, this writ petition is filed inter alia contending that the order had been passed contrary to the directions issued by the two appellate authorities. 4. Counter affidavit is filed on behalf of the respondents wherein it is stated that the authorities were justified in directing service tax to be paid by the petitioners. It is submitted that as per Finance (No.2) Act, 2004 effective from 10/9/2004, only tour operators operating tours in a tourist vehicle were within the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle, covered by a permit, granted under the Motor Vehicles Act, 1988 or the rules made thereunder." Prior to 10/9/2004, the definition of tour operator read as under; "tour operator means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder." It is therefore contended that during the relevant period when arrangements are made by any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the Rules made thereunder, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the show cause notices issued by the third respondent demanding service tax for services rendered in tour operation. According to the petitioners, they are not tour operators and they are only owners of contract carriages. The case of the petitioners is that petitioners have given vehicles for hire to parties and they are not engaged in rendering service as tour operators. There has been change in the charging Section with effect from 10/9/2004 onwards. I feel if the petitioners are just owners of contract carriages letting vehicles on hire and are not engaged in any other service, then of course there would not be any liability at all. This is therefore a matter which requires enquiry and adjudication as to whether petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the business of operating tours in a tourist vehicle covered by a permit" is liable to be termed as a tour operator. The finding by the assessing authority is that "the conditions printed on the specimen order form supplied to customers clearly show that the trips are in fact operated by the assessee and is not just a hiring of contract carriage". It is also found that the staff of the carriage including the driver is operating the trips and tours. Further, it is seen that the appellate authority by Ext.P7 judgment had, after referring to the judgment of the Madras High Court in Secretary, Federation of Bus Operators v. Union of India [2001 STT 162], directed to follow the tenor of Madras High Court judgment in the Bus operators Associa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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