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TMI Blog2018 (11) TMI 1756X X X X Extracts X X X X X X X X Extracts X X X X ..... us for customers purchasing combined tickets for both the ropeways. 3. Appellant is registered with the service tax Department from 01.03.2004 onwards for providing inter alia tour operator service, business auxiliary service, health and fitness service, etc. 4. The Ropeway installed by Appellant run at specific times and any passenger desiring to go from the base point to the desired location, i.e. Maa Mansa Devi temple and Maa Chandi Devi temple, can do so by purchasing tickets which are available in various types. 5. It is a matter of record that the appellant have been paying the Service Tax on the charges of road journey. However, no service tax was paid on the amount charged from pilgrims / tourists for the charges for using the ropeways / Udan Khatolas for visiting Maa Chandi Devi and Maa Mansa Devi. The Department have been of the view that the journey from base point of either of two destination to the temple destination of Maa Mansa Devi and Maa Chandi Devi clearly comes under the definition of 'Tour Operator' service and, therefore, they are required to deposit the Service Tax on the amount charged by them from the customers for providing the tour in Udan Khatola. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is difference of opinion in the aforesaid judgement and by third member's opinion, the appeal was decided in favour of the assessee, wherein it has been held that the movement of the tourist through trolleys between two points cannot be considered as a tour in common sense. It has been contended by the learned advocate that since it is a judgement of third Member and same has the value of Larger Bench judgement as held in the case of Larsen and Toubro [2013 (32) STR 410 (Tri-Del)]. It has further been added that if the definition of tour as provided under section 65 (115) as existed on 10.9.2004 and onwards, the activity undertaken by the appellant does not fall under the definition of 'Tour Operator' service and therefore, the basis of Show Cause Notice and confirmation of the same by the adjudicating authority is legally not sustainable. 7. Appellant submits that the definition of tour operator was expanded with effect from 10.9.2004. The Central Board of Excise and Customs issued Circular No. 80/10/2004-ST, dated 17.9.2004 incorporating clarifications on the charges made in the budget and explaining the scope of the levy under tour operator service. In this Circular, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant is engaged in the business of planning, scheduling, organising or arranging tours and hence covered within the ambit of service tax is factually incorrect. Merely for the reason that the appellant is providing and operating the ropeway facility, does not mean that the appellant is also organizing or planning tours. In this regard, reliance is placed on the following judgements: i) Air India vs. CST, Delhi - [2017 (5) GSTL 172 (Tri-Del)]; ii) Jet Airways (India) Ltd. Vs. CST, Mumbai I-[2016 (41) STR 225 (Tri-Del)]. 10. The learned advocate further emphasised that the appellant normally starts the ropeway operations from 6.30/8.30 hrs and run continuously till 18.00 hrs irrespective of the traffic pattern. Thus, it is evident that Appellant is operating a transportation facility and it is not involved in planning, scheduling, organising or arranging tours and this transport facility can be used by any person visiting the temples of Maa Mansa Devi and Maa Chandi Devi. 11. Furthermore, movement of trolleys simpliciter with the aid of power from one fixed point to another fixed point cannot be held to be a mode of transport. Reliance is placed on the judgement of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Udan Khatola. Appellant also provides transportation by road from one base point to the other which is at a distance of 4 Kms. 16. It can be seen from the above that the tickets are available on seasonal basis as well as one way travel basis. The facility of ropeways travel between two points is very much akin to travel by any community / public transport between two points of destination. 17. With the above facts, we need to examine the matter whether the activity undertaken by the appellant comes within the purview of the definition given in the Finance Act, 1994 for the 'tour operator'. Before we legally analyse the definition qua the facts of the matter, it will be appropriate to have a look at the definition of tour, tour operator and tourists vehicles: Section 65. Definitions - In this Chapter, unless the context otherwise requires: (105) "taxable service" means any [service provided or to be provided], - (n) to any person, by a tour operator in relation to a tour; (113) "tour" means a journey from one place to another irrespective of the distance between such places; (114) tourist vehicle" has the meaning assigned to it in clause (43) of section 2 of the Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is just like any public transport facility which is used by general public for visiting the temples and villagers on the other side of ropeway points. It is akin to any rail or road transport between two points. We feel that the element of planning, scheduling, organising or arranging tours are not involved in this particular activity. The activity undertaken by the appellant is more of a nature of providing transport facility between two fixed places. The definition of "tour operator" in our view, entertains not only a mere transportation of passengers /tourists but also involves a detailed planning of travel, sightseeing and other requirements for a tour. It needs planning and then detailed arrangements are to be made for transport, stay, sight seeing etc., such an activity will certainly classifiable as the tour operator but in the present case, appellants basically provides mere transportation facility which is open to pilgrims / tourists persons even villagers to go uphills and therefore, in our view, same cannot be classified and charged to service tax under the category of 'tour operator' service. While holding the above view, we also take shelter of this Tribunal's decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not give such an artificial meaning to the word 'tour' as to make any movement in a tourist bus a tour. To attract the levy, there must be a tour. In the present case, there is no doubt that there was a tour and that tour is the visit to the temples in question. That is performed by not a tourist vehicle but in a ropeway Gondola. The appellant is right in its contention that the road link between the two boarding points is only an incidental link and cannot displace the pilgrimage as the tour. 8. In the view we have taken above, in the present case, there is no tour in a tourist vehicle as contemplated in the statute so as to attract levy. Therefore the duty demand made under the impugned order is not sustainable. Penalty cannot find place when tax demand is not sustainable. 9. In the result, the impugned order is set aside and the appeals are allowed with consequential relief to the appellants. 19. Though the definition of "tour operator" has got a change since 10.09.2004, however, we feel that after the amendment to the definition of tour operator, it has been made a very elaborate and specific and that for an activity to be classified as "Tour operator" service, the element ..... X X X X Extracts X X X X X X X X Extracts X X X X
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