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TMI Blog2017 (9) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant was under a bona fide belief that he is not a tour operator as he is not using the tourist vehicle and as such is outside the purview of the service tax. Therefore, he failed to apply for registration under the Act and in filing the appropriate return. On account of bona fide dispute as to the liability of the appellant to service tax, it cannot be said that there was any intention to evade tax on his part by concealing taxable service - penalty set aside - decided in favor of assessee. Appeal allowed - decided partly in favor of appellant. - Central Excise Appeal No. 134 of 2017 - - - Dated:- 6-9-2017 - Hon'ble Pankaj Mithal And Hon'ble Umesh Chandra Tripathi, JJ. For the Appellant : Suyash Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 75 (A), Section 77, Section 76 and Section 78 of the Act. The Commissioner (Appeals) Central Excise vide order dated 08.04.2009 allowed the appeal of the appellant holding that he is not a 'tour operator' as there is no involvement of 'tourist vehicle'. Accordingly, the appellant was not held liable for any service tax and the order in original was set aside. The Tribunal by the impugned order has allowed the appeal of the revenue and has set aside the order of the Commissioner (Appeals). Thus restoring that of the Adjudicating Authority. On the submissions of the parties, the following substantial questions of law arises in this appeal:- 1). Whether the CESTAT was justified in holding that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act to mean any person engaged in the business of planning, scheduling or organising or arranging tours by any mode of a transport and includes any person engaged in the business of operating tours in a 'tourist vehicle' or a contract carriage by whatever name called. The appellant is engaged in the business of organising or arranging tours and the vehicle used in such a tour is a luxury bus which has been classified as a 'contract carriage' as defined under Section 2 (7) of the Motor Vehicle Act to mean a motor vehicle which carries passenger for hire or reward under a contract on a time basis or from one point to another. The 'tourist vehicle' has also been defined under Section 2 (43) of the Motor Vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting of the vehicle by the appellant-assessee to the IFFCO falls within taxable service in the category of 'tour operator' as defined under Section 65 (113) of the Finance Act, 1994 and that the appellant assessee had used 'tourist vehicle' for providing such services. Now we come to the second question of law. The Adjudicating Authority while passing the order of penalty has simply stated that the appellant is liable for penalty for the reason that he has suppressed the fact of taxable service and has concealed the same which warrants imposition of penalty. There is no finding or even an averment that this was done by the appellant with intent to evade duty rather the facts of the case establishes that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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