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TMI Blog2008 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... operating tours, but are using these vehicles for transport of passengers from Jabalpur to various places upto Nagpur. One of the vehicles has even been granted permit as "Stage Carriage' as spare bus. According to the Appellants, during 2001-02 to 2003-04 period, these vehicles were being used as stage carriages, very often illegally and, therefore, they are not liable to pay any service tax. However according to Revenue, these vehicles have to be treated as "Contract Carriage" and since the Appellants have tourist permits in respect of these vehicles, they were operating tours in tourist vehicles and hence they were liable to pay service tax, and is it on this basis that the Joint Commissioner vide order-in-original dated 16-3-2006 confirmed the service tax demand of Rs. 9,13,642 against the Appellant under section 73 of the Act and besides this, imposed penalties on them under sections 75A, 76, 77 78 of the Act. The Commissioner (Appeals) vide the impugned order-in-appeal dated 19-6-2006 upheld the Joint Commissioner's order. 2. Heard both the sides. 2.1 Shri Atul Gupta, Company Secretary, the learned Counsel on behalf of the Appellants made the following submissions : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2004 to 29-11-2004 for vehicle No. MP 20 E 7202, MP 20 E 7202 and MP 20 E 9902 respectively, the Appellant obtained temporary permit for carrying marriage parties from Jabalpur to Bilaspur/Shahdol and back. On all other occasions Appellants used their vehicles as "Stage Carriage". Therefore, service tax can be charged, at the next for the above three journeys. Moreover, the words "engaged in" in the definition of tour operator imply continuous operation. Therefore, just because the Appellants carried marriage parties in their vehicles on three occasions, they cannot be treated as "engaged in the business of operating tours in tourist vehicles". (6) From various records seized by the Department from the Appellants' office such as conductor's diary, ticket books, cash books and balance sheets for the period from 1-4-2001 to 31-3-2004 and also the statement of Shri Prabhat Kumar Jain, Proprietor of the Appellant firm recorded on 25-2-2005, it is clear that the Appellants had been issuing tickets from Jabalpur to various places up to Nagpur and Raipur. One of the Appellants' vehicles - MP 20E 9902 is engaged with State Road Transport Authority and is running between Jabalpur to Dind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using their vehicles as "stage carriages', for which they have been penalized several times by the Transport authorities. It has, therefore, been pleaded that since the vehicles were not used as contract carriages for operating tour, their activity is not covered by the definition of 'tour operator'. 4. During the period of dispute, the definitions of 'tour', 'tour operator' 'tourist vehicle' and taxable service with regard to 'tour' in the Finance Act, 1994 were as under : "65(94) 'tour' means a journey from one place to another irrespective of the distance between such places 65(95) 'tourist vehicle' has the meaning assigned to it in clause (43) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988). 65(96) 'tour operator' means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder." 4.1 The term 'tourist vehicle' as defined under section 2(43) of Central Motor Vehicles Act, 1988 is 'tourist vehicle' means a Contract Carriage constructed or adopted and equipped and maintained in accordance with such specifications, as may be prescribed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing verified the various parameters, such a vehicle, by virtue of its being used as stage carriage, cannot be declassified and treated as a non-tourist vehicle. We also find that Hon'ble Madras High Court in the case of Secretary, Federation of Bus Operator Association of Tamil Nadu (supra) has held that stage carriage operators having reserve vehicle under stage carriage permit, capable of being used as contract carriage by special permission and termed as 'tourist vehicle', are covered by the definition of 'tour operators' under section 65(52) of the Act. 6. In view of the above discussions, notwithstanding the Appellant's claim that they are running their vehicles as stage carriages, since the Regional Transport Authority has issued tourist permits in respect of their vehicles, under the Central Motor Vehicle Rules, 1989, the same have to be treated as Tourist Vehicles and the Appellants have to be treated as Tour Operators under section 65(52) of the Act. 7. It has, however, been brought to our notice during the hearing that the Central Government has issued a notification No. 15/07-ST, dated 4-4-2007 under section 83 of the Finance Act, 1994 read with section 11C o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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