9911796707
TMI Blog2007 (1) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... s of payment made during the period September 04 to September 05 amounting to ₹ 13,52,464/-. Accordingly, the Appellants were directed by the Superintendent, Central Excise Range-I Gwalior vide letter dated 31-10-2005 to obtain the registration certificate and to pay the service tax but Appellants neither obtained the registration certificate nor paid service tax for the period September 04 to September 05. (b) Therefore, a Show Cause Notice dated 10-4-2006 was issued for recovery of service tax amounting to ₹ 1,37,951/- (S.Tax ₹ 1,35,246/- + Edu. Cess ₹ 2,705/-) under Section 73 of the Finance Act, 1944 (Finance Act). Penalty under Sections 77 78 was also proposed for contravention of Sections 68, 69 70 of the Act ibid. (c) Vide the impugned order the Adjudicating Authority confirmed the demand of service tax amounting to ₹ 1,37,951/- under Section 73 of the Finance Act along with interest. He also imposed an equal amount ( i.e. ₹ 1,37,951/-) as penalty in terms of Section 78 of the Finance Act and additionally imposed a penalty of ₹ 1,000/- under Section 77 of the Finance Act on the Appellants. Being aggrieved of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R- 49 (CCP) of M.P. Motor Vehicles Rules but under Rule 73 (c) as a private service vehicle in form M.P.V.R-52 (PSVP). Therefore, Vehicle No. MP 07 F 0538 is not a contract vehicle and as such not covered under the definition of Tourist Vehicle . (iv) The Appellants in support of their contention supra have relied on Para 13 to Para 18 of Hon ble Madras High Court judgment in the case of Secretary Federation of Bus-operators Association of Tamilnadu v. UOI reported in 2006 (2) S.T.R. 411 (Mad.) = 2001 (134) E.L.T. 618 (Mad). In the ratio of this decision of the Madras High Court Vehicle No. M.P. 07 F. 0538 clearly remains out of the definition of Tourist Vehicle . When the vehicle could not be treated as Tourist Vehicle , there is no question of Appellants being termed as Tour Operator within the meaning of Section 65(115) of the Finance Act, 1994. (v) M/s. Vikram Woolens Malanpur has acquired the vehicle in question from the Appellants on hire and they have obtained the permit of the vehicle as a Private Service Vehicle vide Rule 73(c) in form M.P. M.V.R. 52 (PSVP) readwith Section 76 of M.V. Act. It may be seen that the vehicle in question has a permit to carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle. Appellants are not the holder of the permit in this case and as holder of permit he has not entered into any contract with M/s. Vikram Woolens, Malanpur. As such it is not a contract vehicle. (iv) Madras High Court in the case reported in 2006 (2) S.T.R. 411 (Mad.) = 2001 (134) E.L.T. 618 (Mad) relied upon by the department, has held, vide Para 36 that if the vehicle owned by the appellant is not Tourist Vehicle within the meaning of Section 2(43) of MV Act read with Rule 128 of the Rules framed thereunder then such Appellant would not be required to be registered under the Finance Act. In view of the above, the impugned order cannot be sustained. 6. The appeal is being taken up for final disposal after dispensing with deposit of duty and penalty. On a careful study of the submissions made by the Appellants, both written and oral, I find that the issue to be decided relates to Service Tax demand on the Appellants under the category of Tour Operator. The Adjudicating Authority going by the amended definition of the term Tour Operator w.e.f. 10-9-2004 came to the conclusion that the Appellants would fall within the category of Tour Operators and accordingly liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur and therefore, they would fall within the ambit Tour Operators only if the vehicle used is tourist vehicle. According to the Appellants, their vehicle is not tourist vehicle which is supported by the R.C Book submitted by them and therefore, they would not come within the purview of service tax under the category of Tour Operator. The case laws cited by the Appellants, namely the Bangalore Tribunal judgment in the case of Praseetha Suresh v. CCE Thiruvananthpuram, the Madras High Court s decision in the case of Secretary Federation of Bus-operators v. UOI (particularly, Paragraphs 20 and 36 of the order) is squarely applicable to the facts of the case and therefore the demand of duty confirmed against the Appellants would be clearly not sustainable and therefore the same is set aside. In this regard, I also find that Karnataka High Court in the case of L.V. Sankeshwar v. Superintendent of C.Ex Jayanagar - 2006 (4) S.T.R. 257 (Kar) have also held that service tax would be attracted only in case of Tour Operators using tourist vehicles and not otherwise and that even though this decision dated 22-9-2006 relates to the levy prior to Budget 2004, it would be squarely applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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