9911796707
TMI Blog2007 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 1,893/- under the category of Tour Operator and an amount of Rs. 4,939/- under the category of Mandap Keeper and imposed Penalties. No appeal is preferred against that part of Order-in-Original, as regards the confirmation of service tax on the value of booking and falling under the category of Business Auxiliary Service, which has not quantified by the adjudicating authority. 2. Since the issue involved in this case is covered by the decision of the Division Bench of Tribunal, Ahmedabad, we waive the pre-deposit of the amounts involved and take up the appeal itself for disposal. 3. The main issue involved in this case is regarding the taxability of the services provided by the appellant under the category of Tour Operator. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to do so to indicate that the appellant was doing the business of the tour operator. 6. We have considered the submission made at length by both sides and perused the records. On perusal of the Order-in-Original, we find that the adjudicating authority has not come to the conclusion, as to how the vehicles operated by the appellant would get covered under the provisions of Section 65 (115) of the Finance Act, 1994. It is also on record that the transport authorities have issued permit to the appellant under Section 72(1) of the Motor Vehicles Act. The said permit clearly indicates that the vehicles, which were plied by the appellant, were as stage carriages and not as tourist vehicles. 7. An identical issue was decided by Ahmedabad benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Vehicle Registering authority i.e. State Transport Authority that 4 vehicles which are in question were covered under Section 2(7) of the Motor Vehicle Act as a contract carriage but they were not covered under Section 2(43) of the Motor Vehicle Act as tourist vehicle. On such evidence being produced before the Commissioner (Appeals), learned Commissioner (Appeals) has held that these 4 vehicles would fall out of ambit as a "Tourist Vehicle' and granted relief to the respondents. We find that the Revenue has not produced any contrary evidence before us to indicate that the vehicles in question are not tourist vehicles. 7. Coming to the judgment cited by the learned SDR, we find, that the Hon'ble High Court of Madras in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges" is not applicable. It is also relevant to refer once again the observation in Para 41"... In fact, the most of the petitioners, who are having the contract carriage, are having the permits, under Section 88(9) of the Motor Vehicles Act read with Section 82, which are nothing but tourist "tourist permits" issued for the purpose of promoting the tourism and obviously issued to the tourist. Whereas contemplated under that section. Therefore, there will be no question of entertaining their objections and they will straightaway be covered under Section 65 (52) of the Finance Act...." On the reading of the above reproduced portion of the judgment of the Hon'ble High Court it can be seen that the Hon'ble High Court came to the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the 'tour operator' is squarely covered by the decision of the Tribunal in the case of Gandhi Travels (supra). Hence, we hold that the impugned order to the extent, it confirms the demand of service tax on the appellant under the category of 'tour operator' is liable to be set aside and we do so. As regards the amount of service tax on account of Mandap Keeper, since the appellant is not challenging the same, we uphold the same. As regards the penalties imposed on the appellant, since we have held that the appellant is not covered under the category of 'tour operator', the penalty imposed to the extent for such non-discharge of Service Tax liability is also liable to be set aside. As regards the penalty imposable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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