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TMI Blog2016 (11) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... t for meeting special situation under Section 88(8) of the Act which does not fail in the definition of tourist vehicle or contract carriage and attract levy of service tax. - the impugned activities carried out by the assessee will not attract the definition of "Tour operator 'under section Section 65 (52) of Finance Act, 1994 prior to 10.092004 and under Section 65 (115) for the remainder period covered in this case. This being so, the demands involved in the appeals filed by the assessee cannot sustain and the related impugned orders are liable to be set aside - appeal dismissed - decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... cles remains as such, in case of package tour (which are planned, scheduled, organized or arranged by tour operators), the scope of 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-ST) in case of package tour operators (providing transportation and accommodation) would remain at 60%." 3.2 Appellants submit that the amended definition is applicable only to tour operators engaged in the business of conducting package tours. However, the requirement of levy on tour operators engaged in operating tours in tourist vehicle remains as such. In the said circumstances, when the Appellants are not engaged in the business of operating tours and the services are provided by them by obtaining stage carriage permits, special permits from RTA, and the vehicles used by them are not confirming to the requirements of a "tourist vehicle: the learned Commissioner's order holding that ht 3eappelIants are providing taxable services as tour operators has no substance. In support of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y obtaining temporary contract carriage permits, under Section 88(8) of the Motor Vehicles Act, 1988, (ii) Inter-state casual contract: Same as (i) above but involves inter-state destinations. For the above two activities, the mandatory 10% of spare busies to be kept by APSRTC alone are used. (iii) Chartered Contract Services: Plying buses exclusively for the employees of certain companies/industries etc. The buses which are having Stage carriage Permits only are used for this purpose. These buses are regularly plying as State carriers and for one trip, they are used exclusively for the customers' employees. On their return trip they are once again used as normal stage carriage buses. 5. On behalf of department the Ld. Ar. Mr. Anish Gupta vigorously opposed the appeals of the assessee. He pointed out that their website offers various chartered contract services. He placed reliance on the judgment of the Hon'ble High Court of Madras in the case of Secy. Fed. of Bus Operators Assn. of Tamil Nadu V UOI 2001 (134) ELT 618 (Mad) (hereafter referred to as SFBAT case) to urge that the activities carried out by the appellants would fail under Tour operator service and hence the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of planning, schedule in organizing or arran in tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport and includes any person engaged in the business of operating tours in a tourist vehicle or a contract carriage by whatever name called, covered by a permit other than stage carriage permit, granted under the Motor Vehicles Act, 1988 or the rules made thereunder. So also, certain provisions of the Motor Vehicles Act, 1988 and the Rules made thereunder are extracted as below, appreciate the issue in its proper perspective. Term defined Reference to the Finance Act, 1994 Definition Tourist vehicle Section 2(43) of the M.V.Act, 1988 Tourist vehicle means a contract carriage constructed or adapted and equipped or maintained in accordance with such specifications as may be prescribed in this behalf. Contract Carriage Section 2(7) of the M.V.Act, 1988 Contract carriage means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id vehicle which is covered under Section 72(2)(xvii) can never become a "tourist vehicle". We hasten to add, however, that before any such vehicle is treated as a 'tourist vehicle", it will have to conform to the conditions laid down for the tourist vehicle in Rule 128 of the Motor Vehicles Rules. That would by far be the only condition. 21. Now turning back to Section 65(52), which defines "tour It operators", it merely mentions user of a tourist vehicle" covered by a permit granted under Central Motor Vehicles Act, 1988 or the rules framed thereunder by a person engaged in the business of operating tours. It, therefore, cannot be countenanced that a reserve vehicle under the stage carriage permit cannot acquire the character of contract carriage and can, therefore, never be termed as a "tourist vehicle" and therefore the owners of such vehicles cannot be covered under the Finance Act and more particularly under Section 66(52) thereof. 24. However, it must be remembered that in the present case, we are not concerned with the two kind of permits. The question posed before us is whether a vehicle covered under Section 72(2)(xvii) of the Moto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be attracted. We do not think, therefore, that the decision is any manner helpful to the petitioners. The first contention to the. effect that a spare bus operating under a permit under Section 88(8) of the Motor Vehicles Act can never be a contract carriage and, therefore, can never become a "tourist vehicle" is rejected. (emphasis supplied) 9. The above ratio of the SFBAT judgment finds echo in the Tribunal decision in the case of CCE, Rajkot V CCE, Bharat Travels 2010 (20) STR 526 (Tri-Ahmd). The relevant portion of the decision is reproduced below: 2. Briefly stated facts of the case are department initiated proceeding against the respondent after conducting a survey. A show cause notice was issued against the respondents alleging that they were rendering service of tour operators, thereby asking them to take registration and pay service tax on the service rendered by them. The lower adjudicating authority confirmed the demand of service tax on the respondent. Aggireved by the same they filed an appeal against the said order, with Commissioner (Appeals). The Commissioner (Appeals) while taking into consideration the relevant definition of tour, tourist vehicle, tour operator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment on this aspect is that the conclusion arrived at by the learned Commissioner (Appeals) is prima facie wrong as much as the tourist vehicle operated by the respondent will not be out of the purview of the said definition. The reservation is without any evidence and it neither challenge the veracity or the contents of the certificate. As regard the other grievance of the appellant that the learned Commissioner (Appeals) has not taken into consideration the fact that the lower adjudicating authority has himself seen the vehicle and found that the vehicles predominantly covered the specifications in Rule 128 of Motor Vehicle Rules, 1988. It is pertinent that Lower Adjudicating Authority refer to one of the sub-clause of the Rules regarding painting of a strip on the vehicle and silent regarding remaining 12 clauses of total of 13 clauses. Once the vehicle is out of purview of the definition of the tourist vehicle the decision rendered by the Hon'ble Madras High Court referred supra is of no avail to the appellants. Learned Commissioner (Appeals) has rightly relied upon the decision of Hon'ble High Court of Madras in the case of Secy. Federn. of Bus-Operators Assn. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) to (52) alone in interpreting those provisions. Merely because the Motor Vehicles Act provides for "tourist permit", it would not mean that Section 65(52) of the Finance Act also contemplates only a "tourist permit". We cannot do violence to the language of the provisions by holding that a "tourist vehicle" contemplated under the Finance Act must be a vehicle having only "tourist permit. " Some other decisions cited by the ld. AR are stay matters and not final decisions. Therefore they cannot be relied upon. In view of the above, we unhesitatingly hold that pre-10-9-2004, the activity undertaken by the appellants is not leviable to tax under the "Tour Operators Service". 5. We may now consider the period post-10-9-2004. The definition of Tour Operator read as under : " 'Tour Operator' means any person engaged in business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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