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TMI Blog2024 (12) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... 09/2005 dated 03.01.2005 also extends exemption from service to outboud tours - reliance can be placed in M/S COX KINGS LIMITED (FORMERLY KNOWN AS COX AND KINGS (INDIA) LIMITED) VERSUS COMMISSIONER (TAR) -MUMBAI [ 2023 (10) TMI 1388 - CESTAT MUMBAI - LB] - Issue stands decided in favour of appellant. Whether the appellant is entitled to pay service tax on domestic outbound tours? - HELD THAT:- The insertion of clause (q) in Section 67 of Finance Act provides that the value of tour operator service will not only include the gross amount charged for the tour but also the charges for accommodation, food or any other facility provided in relation to such tour, we hold that the amount charged by the appellant for arranging domestic tour is liable to be taxed. In terms of TRU clarification No. 43/10/1997 dated 22.08.1997 the service tax on the services rendered by tour operators is only on tour services rendered in India in respect of tour with in Indian Territory (inbound tours). The services rendered by tour operators in respect of outbound tourism i.e. tours abroad do not attract to service tax. In case of composite tour which combined tour with in India and also outside India, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Taxable Services of Tour Operator , Travel Agent , Air Travel Agent , Rail Travel Agent , Renting of Cab . After risk assessment profiling of the appellant, during the course of the audit, the department observed that the appellants were not paying service tax on following: (i) Outbound tours of Rs. 10,58,320/- calculated on the taxable value amounting to Rs. 2, 95, 98, 253/-which was collected by the Appellants from the passengers in respect of outbound tours sold during the period 10.09. 2004 to 31.03.2009. (ii) On account of Exemption under notification number 21/ 2003-ST dated 20.11.2003 being wrongly availed by the Appellants during the financial 2007-08 for not fulfilling, the condition provided under the said notification that, exemption shall not be available when the payment received in India in convertible foreign exchange for taxable services rendered is repatriated from, or sent outside, India . The appellants undertaking composition tour for foreign tourists for tourists in India and Nepal/ Bhutan and were receiving payments in foreign currency in India. Thus service tax amounting to 1481/-on the payments amounting to Rs. 36300/- after allowing abatement of 60% vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e another decision of this Tribunal in the case Akbar Travel and Tours vs. Commissioner of Service Tax reported as 2016 (45) STR 444 (Tri.-Del.). Appeal is accordingly prayed to be allowed while set-aside the impugned order in appeal. 6. While rebutting the submission, the learned DR has mentioned that the definition of Tour Operator Service underwent a change w.e.f. 10.09.2004. The amended definition introduced the services such as Planning, Scheduling, organizing or arranging tours, arrangement for accommodation, or other similar services as Tour Operator Service, therefore, the tour itself was not a taxable event but the activities related to the arrangement of Tour would fall within the said definition. The services in question are provided by the appellant based in India to the customers also based in India, hence, the services are liable to tax. The same decision of M/s Cox Kings Limited (supra) is relied upon the learned DR to impress upon the liability of the appellant vis- -vis the domestic tours. 7. Having heard the rival contentions and perusing the entire records. We frame following issues to be adjudicated:- (i) Whether appellant is liable to pay tax on outbound tours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently also been reiterating by Hon ble Apex Court in the case Association of Leasing and Financial Service Companies vs. Union of India reported as 2011 (2) SSC 352. The definition of taxable service, therefore, has to fit within this framework for it to be applicable. Since, arrangement of tours outside the territory of India i.e the destination being outside India for outbound tours irrespective the service recipient is located in India or is a foreign traveller, the outbound tour is not liable to service tax. There is no tax activity on outbound tours in terms of Rule 3(2) of Export of Service Rules, 2005 according to which the taxable service which is partly performed in India has also to be considered as the activity performed outside India. Notification No. 09/2005 dated 03.01.2005 also extends exemption from service to outboud tours. The issue is no more res-integra as stands decided in M/s Cox Kings Limited (supra). Issue no. 1 stands decided in favour of appellant. Issue No. 2 In the above discussion on Issue No. 1 vis- -vis meaning of tour operator, tour and that the service tax is destination based it stands clear when both the receiver and provider are in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ism i.e. tours abroad do not attract to service tax. In case of composite tour which combined tour with in India and also outside India, the service tax will be leviable only on services rendered for tours within India. Separate billing has to be done by the tour operators for services provided in respect of tours within India. The order under challenge confirming the demand on inbound tours, is therefore, upheld. Issue No. 3 The Department has treated the web domain charges to have been received against rendering intellectual property services, we observe that the intellectual property right service has been defined under Section 65 (55a) of Finance Act 1994 to mean any right to intangible property, namely, trademarks, design, patent or any other intangible property under any law for the time being in forced. The term trademark is defined under clause 2(b) of Section 2 of Trade Marks Act, 1990 to mean a mark capable to being represented graphically and which is capable of distinguished goods or services of one person from those of others and may include shape of goods, the packing and combination of colours. The definition makes it clear that the trademark indicates relationship b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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