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TMI Blog2019 (2) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... , Member (Judicial) And Mr. Raju, Member (Technical) For the appellant: Shri K.J. Kinariwala, Asst. Commr (AR) For the respondent: Shri Anish Goyal, Adv. ORDER Per: Raju This appeal has been filed by Revenue against confirmation order of Commissioner upholding the order passed by Addl. Commr. dated 30.04.2008 dropping proceeding against M/s Shreenath Travellers. 2. Ld. AR pointed out that the Commissioner has upheld the order of Addl. Commr. dropping the demand of Service Tax under the head of Tour Operator. He pointed out that respondents M/s Shreenath Travellers has leased out their buses to M/s Hazira Employees Transport Association at RIL, Hazira as per written agreement. The respondents were picking up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndard of conforts which are required to be there in a vehicle for being recognized as the tourist vehicle under the Central Motor Vehicles Rules. We have, therefore, no hesitation first to hold that the first and foremost condition for a person to be held as a tour operator within the meaning of Section 65(52) of the Finance Act is that he must be engaged in the business of operating tours in a tourist vehicle in terms of section 2(43) of the Motor Vehicles Act and in no other type of vehicle and, therefore, necessarily such vehicle must conform to the conditions prescribed under Rule 128 of the Central Motor Vehicles Rules. The Commissioner in the said order held that since the vehicle used by appellant is not Tourist Vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a user of a tourist vehicle by the tour operator in his business and further such tourist vehicle should have been covered under a permit granted under the Motor vehicles Act and/or Rules framed thereunder. [paras 41,42]. Ld. AR argued that the Commissioner has wrongly upheld the order of Addl. Commissioner. He further argued that the Commr. has relied on the decision of Tribunal in the case of Gatulal V Patel 2007 (7) STR 362. He pointed out that the said decision has not been accepted and the same has been challenged in Hon ble High Court of Gujarat. It is noticed that in the grounds of appeal it has been mentioned that in an identical issue of Ashok Travels, the Commissioner (CE) filed SLP (C) No. 32264/2009 before Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove it follows that the requirement of permit granted under the Motor Vehicle Act, 1988, it was imperative that the vehicle being used by the respondent to possess tourist permit and the vehicle is a tourist vehicle. Undisputedly the impugned vehicles are out of purview of the definition of tourist vehicle. The reservation of the department 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 challenges the veracity or the contents of the certificate. As regard the other grievance of the appellant that the learned authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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