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Landmark Service Tax Judgment - Tour Operatorís Services

Taxable Services - Tour Operator’s Services

Case Laws Related

  • STO 2013 CESTAT 1295
  • Tour Operator: Demand: In the present set of appeals where there is no dispute that the demands are in respect of contract carriage operation alone, one has to see whether the vehicles used were meeting the specifications of tourist vehicle: Commissioner (Appeals) is required to examine whether any of the contract carriage operation was carried out by MSRTC using a vehicle which meets the specifications prescribed for tourist vehicle under Rule 128 of the Central Motor Vehicles Rules. In case of any vehicle which meets the said specifications and was used for contract carriage operation, service tax will be payable in that case. In other cases where the vehicle does not meet the specifications or was used for stage carriage operation, no service tax will be leviable.

  • STO 2013 CESTAT 915
  • Tour Operator Service: Exemption: Appellant not entitled to the benefits under Notification No. 25/2004/ST, dated 10.09.2004  being a tour operator engaged in the business of operating tours in tourist vehicle covered by the permit granted under Motor Vehicles Act.

  • STO 2013 CESTAT 954
  • Tour Operator Service: Demand: Larger Period: Since tour operator service rendered on charter or hire basis has been specifically excluded from the scope of the exemption, the appellants are not eligible for the said exemption: Demand for normal period confirmed as bonafide belief existed for not paying service tax, hence, larger period not invocable.

  • STO 2013 CESTAT 213
  • Tour Operator: Appellants only renting their vehicles: Department could not bring out on record that the appellants are engaged in the business of planning, scheduling, organizing or arranging tours. In these circumstances, they cannot be termed as tour operators.

  • STO 2013 CESTAT 235
  • Tour Operator: Appellants entered into agreement with corporate companies for transport of the company employees from their residences to their offices and back and collected service charges from these corporates for the same: even if the tour is undertaken in a stage carriage or contract carriage, service tax levy would be attracted under tour operators service: Directions for partial pre deposit issued.

  • STO 2012 CESTAT 825
  • Tour Operator Service: Notification. No. 20/2009-S.T: Such notification not made available before Commissioner (Appeals): Stay granted and matter remanded back to Commissioner (A).

  • STO 2012 CESTAT 700
  • Tour Operator Service: Amendment in the definition: Demand for the period prior to amendment set aside: BAS: Appellants booking tickets for agents who are similarly placed is covered under BAS: Demand confirmed, invocation of larger period to be checked. 

  • STO 2012 CESTAT 546
  • Tour Operator Service: The activities of the appellant will fall under the category of 'Tour Operator Services' even when they use vehicles belonging to third parties.

  • STO 2012 CESTAT 589
  • Tour Operator: The appellant are neither holding tourist permit nor having tourist vehicles. Therefore, from the above observations, the appellants are not liable to pay service on their activities for the period prior to 10.09.2004.

  • STO 2012 CESTAT 325
  • Tour Operator v/s Rent-a-cab: Appellants provided buses to another firm on rent: Service not covered under Tour Operator: The case found debatable for Rent-a-cab: Directions issued for partial pre deposit on service tax confirmed under Rent-a-cab.

  • STO 2012 CESTAT 171
  • Demand: Tour Operator: Stay: the activity of providing air transport, transportation from airport to hotel and back to airport, room accommodation in hotel not covered under Tour Operator: Stay granted.

  • STO 2012 CESTAT 206
  • Tour Operator: Definition includes charges recovered for any other similar services to include charges for TTD or RMF visit or boating, etc.: Benefit of abatement on the gross collection admissible including amounts collected for supplementary services.

  • STO 2011 CESTAT 326
  • Tour Operators Service: Prior to 10.9.2004 appellants service of acting as booking agents for outstation travel agencies: arguable case: partial stay granted.

  • STO 2011 CESTAT 81
  • Service Tax: Tour Operator Services: The certificate given by the Regional Transport Office, who is the proper authority to give decision on the said dispute, is clear that the vehicle being used by the respondents cannot be held to be tourist vehicles. No reason to interfere in the order of the Commissioner (Appeals). Revenue's appeal is accordingly, rejected. (para 6)

  • STO 2011 CESTAT 47
  • Service Tax: Tour Operators Service: Pre-deposit: The contention made on behalf of the appellants that the outbound tours are taken abroad and therefore no service tax can be levied in India on the same is prima facie not tenable. What is being sought to be taxed is the service provided by the appellants in India by way of planning, scheduling, organizing or arranging tours including arrangements for accommodation, sight-seeing or other similar services and they are being paid for the paid purpose in India. However, keeping in view the financial difficulty pleaded by the appellants, direct them to predeposit Rs.12,00,000/- (para 5)

  • STO 2010 CESTAT 516
  • Service Tax: Tour operators service by using contract carriages as tourist vehicles: Demand: Classification of service: The stand of the appellants is that the vehicles plied by them are not tourist vehicles for the reason that they have not been adopted/maintained or equipped in accordance with the specifications prescribed under Rule 128 of the Motor Vehicles Rules and they are, therefore, not tourist vehicles within the meaning of Section 2(43) of the Motor Vehicles Act. In the impugned order, there is no finding by the Commissioner whether the vehicles operated by the appellants are tourist vehicles in terms of the definition under Section 2(43) of the Motor Vehicles Act, 1988 - he has held that such specifications like dimension, structure, passenger entrance and exit and emergency doors are with reference to the ease and convenience of the tourist passengers and by not having such specification, the vehicle does not become a non-tourist vehicle. If on examination it is found that the tourist vehicles operated by the appellants conform to the definition of tourist vehicle as per Section 2(43) of the Motor Vehicles Act r/w Rule 128 of the Motor Vehicles Act, then the appellants cannot escape the liability to service tax. If on the other hand, it is found on verification that the vehicles are not tourist vehicles within the meaning of the above provisions of the Motor Vehicles Act, then the demand of service tax on the appellants cannot be sustained. The adjudicating authority is also required to verify whether the assessees possess permits issued in terms of Section 88(9) of the Motor Vehicles Act. The impugned order is set aside and remit the cases to the adjudicating authority for fresh decision(Para 3). 

  • STO 2010 CESTAT 440
  • Service Tax: Tour Operators Service: The learned Commissioner has rightly observed that merely because the bus has the permit under 'contract carriage', it does not become the tourist vehicle. The endeavour of the Revenue had been to show that these buses were tourist vehicle since they were issued with contract carriage permit. The Revenue could not produce any evidence that the findings of the learned Commissioner suffers from any infirmity. (para 7.1)

  • STO 2010 CESTAT 300
  • Service Tax: Tour Operators Service: 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 Revenue's appeal is devoid of merits. Therefore the Commissioner (Appeals)' order is upheld and Revenue's appeal is dismissed. (para 4)

  • STO 2010 CESTAT 409
  • Tour Operator Service: Whether conditions imposed in the definition during the relevant period were fulfilled or not being factual position: Matter remanded: Larger period not invocable as there were confusing judgments on the issue.

  • STO 2010 CESTAT 105
  • Service Tax: Tour operator's service: Suppression of fact: Extended period: Clear remarks had been made in the ST-3 Returns for exclusion of total amount of Rs.13,77,281 /- from the value of taxable service on the ground that the tax on this amount was to be paid by the Principal Tour Operators. In respect of this amount, the respondent cannot be accused of suppression of fact. When all the records, as required by the Deptt. had been produced by the respondent for scrutiny their ST.3 returns, it would not be correct to accuse the respondent of willful miss statement, suppression of facts etc. . No infirmity in the impugned order. The Revenue's appeal is dismissed. (para 3,4)

  • STO 2010 CESTAT 89
  • Service Tax: Tour Operators Service: Pre-deposit: Liability to service tax arises only if the contract carriage fulfills the requirement of tourist vehicle under Motor Vehicles Rules. Waiver of pre-deposit and stay of recovery of the amount in question pending the appeal. (para 4)

  • STO 2009 CESTAT 1527
  • Service Tax: Tour Operator Service: Allegation of suppression of facts with willful intent to evade payment of service tax: Period of limitation: Once the Hon'ble High Court of Madras dismissed the writ petitions challenging the validity of the levy of service tax on Tour Operators, the department should have issued show-cause notice within the normal period of limitation as all facts regarding liability of the appellants to service tax during the relevant period, after withdrawal of exemption, were known to both sides. When everything is known to both sides, there can be no allegation of suppression of facts with willful intent to evade payment of service tax. The fact that service tax was not paid by the assessees after the dismissal of the writ petition by the High Court is not sufficient to hold that there was suppression on their part as it was in the open knowledge of both sides that the assessees were liable to pay tax, which is the reason why they challenged the levy before the High Court (although unsuccessfully). No periodical protective show-cause notice was issued during the period 01.04.2000 to 30.04.2001 – no notice was issued for recovery of tax and for imposition of penalty until June, 2005 (show-cause notices in the present set of cases range from June '05 to Oct.'05). Therefore, the extended period of limitation is not available to the department.(Para 3).

    Appeals allowed on the ground of limitation.

  • STO 2009 CESTAT 1322
  • Service Tax: Tour Operator: Scope and liability: The period can be divided into two parts i.e. prior and post 10.9.2004, when the definition of Tour Operator was changed. It is seen that prior to 10.9.2004, the Tribunal has held in various decisions, that to be covered under the said category of services, the vehicle must be registered as a Tourist Vehicle. Reliance in this regards can be placed on the Tribunal decision in the case of CCE Meerut vs. Highway Motors. As regards period post 10.9.2004, the appellants were not arranging tours but plying buses from one place to another with liberty to the passengers to get down at any place in between. As no tour was being arranged by them, they cannot be held to be covered by the said services. Reliance placed on Tribunal's decision in the case of Usha Breco Limited vs. CCE Meerut STO 2006 CESTAT 817. (Para 3,4).

    Stay granted.

  • STO 2009 CESTAT 1457
  • Service Tax: Tour Operator service during 2000-01 to 31/3/2005: Scope and liability: The definition of ‘Tour Operator’ had undergone a change w.e.f. 10/9/2004, the Service Tax liability post 10/9/2004 needs to be gone into detail with reference to the definition. For earlier period, the decision of the co-ordinate Bench in the case of Mangalwardhini Travels STO 2008 CESTAT 311 squarely covers the issue in favour of the assessee. Since post 10/9/2004, the issue needs to be looked into in greater details, (Para 5).

    Pre-deposit ordered.

  • STO 2009 CESTAT 1788
  • Service Tax: Tour Operator: Scope and liability: Respondent has faced Adjudication for the period April, 2000 to February, 2004 only for booking tickets for M/s. Neelam Travels. The Respondent has placed its defence making it clear that they are only booking agents and for such service they are not liable to pay Service Tax since consideration received for booking tickets were brought to ambit of law from 10-9-07. If there was no levy prior to 10-9-04 for taxing considerations received as booking agent, the Respondent should not have been brought to Service Tax Act in the guise of tour operator. (Para 3,5).

    Revenue appeal dismissed.

  • STO 2009 CESTAT 1263
  • Service Tax: Tour Operator' service: Scope and liability of a ticket booking agent: There was no law in force to tax consideration received for booking tickets for a principal. If there was no levy prior to 10.9.04 for taxing consideration received as booking agent, the Respondent should not have been brought to Service Tax Act in the guise of tour operator. There is no evidence on record to show that the Respondent had conducted tours for M/s Neelam Travels, and ingredients of law in respect of tour operator were present.(Para 5).

    Revenue appeal dismissed.

  • STO 2009 CESTAT 759
  • Tour Operator Service: Not engage in planning, scheduling, organizing or arranging tours, only provided transport. In the circumstances, the liability of service tax under tour operator service found by the lower authorities is not in accordance with law.

  • STO 2009 CESTAT 324
  • Tour Operator: The appellant has not registered themselves with the Central Excise authorities; they have not filed the required returns and therefore, prima facie extended time could be invoked. Conditional Stay granted. 

  • STO 2009 CESTAT 290
  • Tour Operator Service: 'Tour Operator's Service' heading must satisfy two conditions-(a) He must operate 'Tour' and (b) Tour must be on Tourist Vehicle. There is no evidence that the vehicles being used by the respondent are tourist vehicles as defined under Section 2(43) of Motor Vehicle Act, read with Rule 128 of Central Motor Vehicle Rules, the respondent's activity would not be covered by the tour operator's service.

  • STO 2009 CESTAT 114
  • Service Tax: Tour operator: Activity - using the vehicles for transporting students to and from schools: Scope: The first and foremost condition for a person to be held as "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 evidence produced before the lower authorities and before us indicate that the respondent is not operating 'tourist vehicles' as per Section 2(43) of Motor Vehicles Act, read with Rule 128 of Central Motor Vehicle Rules. The appellant was plying vehicles which had Stage Carriage Permit and they cannot be treated as that of a contract carriage and therefore, they cannot come under the category of Tourist Vehicle and therefore, their activity cannot be treated as Tour Operator in view of the decision in the case of - (a) Ashok Travels vs. C.C.E., Vadodara  STO 2007 CESTAT 1468 (b) Jayaswal Travels vs. C.C.E., Meerut I STO 2008 CESTAT 959 (c) C.C.E. & Cus., Vadodara II vs. Gandhi Travels STO 2007 CESTAT 122 (Para 4,6,7).

    Appeal allowed.

  • STO 2008 CESTAT 917
  • Service Tax: Tour operator's service during the period from June 2002 to March 2005: Scope and liability: It is an admitted position that the vehicles being used for operating tours are not 'tourist vehicle', as defined under Section 2 (43) of the Motor Vehicle Act, readwith Rules 128 of the Central Motor Vehicle Rules. Therefore, in view of Hon'ble Madras High Court's judgment in case of Secretary Federation of Bus-Operators Association of Tamil Nadu vs. Union of India STO 2001 Mad 305 , the vehicles being used by the Appellant for conveyance of their client's staff cannot be said to be tourist vehicles and hence the Appellant cannot be said to be a tour operators within the meaning of this term, as defined under Section 65 (52) of the Finance Act.(Para 3).

    Revenue appeal dismissed.

  • STO 2008 CESTAT 566
  • Service Tax: Tour operator: Scope and liability: In the present case that there is no evidence to show that the buses, in question, are tourist vehicles as provided under Section 2(43) of the Motor Vehicles Act. In similar situation, the Tribunal in the case of Usha Breco Ltd. vs CCE reported in STO 2006 CESTAT 816 after considering the decision of the Hon'ble Madras High Court in the case of Secy. Federn. Of Bus-operators Assn. of T.N. vs UOI reported in STO 2001 Mad 305 held that tourist vehicle to be as per provisions of "Motor Vehicles Act and Rules and when vehicle is not covered by the description of tourist vehicle and not run as such person concerned is not covered under the scope of tour operator.(Para 4,5).

    Revenue appeal dismissed.

  • STO 2009 CESTAT 146
  • Service Tax: Waiver of pre-deposit: The contentions raised by the appellants as well as those by the revenue have to be gone in depth before reaching any conclusion. This can be done only at the time of final hearing. Suffice it to say that at this stage it cannot be said that the appellants have a very strong case in their favour for complete waiver of pre-deposit.(Para 5).

    Pre-deposit ordered.

  • STO 2008 CESTAT 311
  • Tour Operator Service: Government itself in this Notification has acknowledged the practice of non-levy of Service Tax during period from 1.4.2000 to 4.2.2004 on the service provided by tour operators operating under Contract Carriage Permits, in relation to transport of passengers from one place to another (other than Package Tour Services), there will be no justification for holding the Appellant guilty of wilful suppression of relevant information with intent to evade the Service Tax. Demand is time barred.

  • STO 2009 CESTAT 453
  • Service Tax: Tour Operator Service for the period 1.4.2000 to 30.4.2001. On 30.4.2001: Period of limitation: Time bar: The Show Cause Notice issued in September, 2005 was clearly barred by limitation; department was aware of the nonpayment of tax by the appellants on account of the Writ Petition filed by them in the Madras High Court. Moreover, the jurisdictional range Superintendent also had written to them as early as 5th September, 2001 directing them to pay the service tax for the period 2000-01. The appellants have made out a prima facie case against the demands. Accordingly there shall be full waiver of pre-deposit (Para 1,3).

    Stay granted.

  • STO 2008 CESTAT 439
  • Service Tax: Tour Operator services: Tourist vehicle, necessity of: Period of dispute April, 2000 to March, 2007: Demand: Tribunal’s decision in Commissioner v. Gandhi Travels - STO 2007 CESTAT 122 , wherein the Hon’ble High Court’s decision in the Federation of Bus-Operators Association of Tamilnadu case was also considered and it was held that a “tourist vehicle” should meet the specifications given under Rule 128 of the Motor Vehicles Rules for purposes of “tour operators’ service” for the levy of service tax. But in the case of Gandhi Travels, the Tribunal had taken into account only para 14 of the Hon’ble High Court’s judgment. The subsequent paragraphs in the Hon’ble High Court’s judgment were overlooked. Para 29 of the Hon’ble High Court’s judgment, cited by learned SDR, was decisive on the point but the same was not considered in the case of Gandhi Travels. After a reading of the Hon’ble High Court’s judgment, the requirement for the purpose of Section 65(52) of the Finance Act, 1994 has been conclusively set out in para 29 of the High Court’s judgment and, accordingly, for a vehicle to be classified as a “tourist vehicle” for purposes of Section 65(52) of the Finance Act, it is not necessary that it should satisfy the specifications and confort levels enumerated under Rule 128 of the Central Motor Vehicles Rules. What is required is that the vehicle should be put into operation under a permit granted by the motor vehicle authority under some provision of the Motor Vehicles Rules r/w the relevant provision of the Motor Vehicles Act. Prima facie, this requirement was satisfied by the buses operated by the appellant. The case law cited by either side pertains to a period prior to October 2004, during which Section 65(52) dealt with a “tour operator”. These decisions are not relevant for arriving at a decision for the period after October 2004 inasmuch as the amended definition of “tour operator” under Section 65(115) does not make it mandatory that the vehicle operated by the tour operator should conform to particular specifications. The expression ‘any mode of transport’ employed under Section 65(115) of the Finance Act, 1994 indicates this legal position.(Para 3).

    Partial pre-deposit ordered.
     

  • STO 2009 CESTAT 199
  • Service Tax: "Tour Operator" for the period of April, 2001 to Sept. 2005: Scope and liability: Waiver of pre-deposit: The Tour operator as defined w.e.f. 10.9.2004 is a person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight seeing or other similar services) by any mode of transport and includes any person engaged in the business of operating Tour Operation in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the Rules made there under. Prior to 10.9.2004 the definition of Tour Operator was a person who hold a 'tourist permit' granted under the Motor Vehicle Act, 1988 to undertake tour operator business. In the case of CCE & Cus, Vadodara-II Vs. Gandhi Travels STO 2007 CESTAT 122 the Tribunal has held that no service tax is leviable, if the vehicles are not registered as Tourist Vehicles. Since the demand for the period prior to 10.9.04 is covered by the decision, demand from 10-09-2004 is sustainable. No prima facie case made out.(Para 3).

    Pre-deposit ordered.

  • STO 2008 CESTAT 82
  • Tour operator Service : Pre deposit: There being no evidence about payment of service tax either by appellants or tour operators who took the vehicles from the appellants, prima facie case not made out,  entire amount ordered to be pre deposited.

  • STO 2008 CESTAT 27
  • Tour operator : Apart from the abatement under Notfn.No.39/1997-ST dt.22.8.1997 for “Tour Operators”, there are several other services like providing accommodation, food and other facilities which are also deductible as service is not liable to be paid on such expenses incurred by Tour Operator.

  • STO 2007 CESTAT 1413
  • Tour Operator: Stay: Appellants treated as tour operator for the services provided by them under contract for transporting employees of company from various places to their factory and back during the period from 10.9.2004 to 31.12.2005. Definition of Tour Operator required that for being covered under this category the person should be engaged in operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or rules made there under. Since the lower authorities have not entered a finding in this respect, full waiver granted.

  • STO 2007 CESTAT 474
  • Service Tax: Tour operator: Suppression of information: Appellants submitted that they are not having Tourist permits. They are only booking agents. This contention is rebutted by the revenue by producing evidence by way of information from the Regional Transport authority that the appellants are having so many All India Tourist permits in their name. This evidence was not before the lower authority. Therefore, it is a fit case for re-consideration by the adjudicating authority. The impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after taking into consideration the evidence now produced by the revenue(Para 4).

    Appeal disposed of by way of remand.

  • STO 2007 CESTAT 1272
  • Tour Operator Service : The service rendered by utilizing buses for carrying children from home to the school and back can be treated as the taxable service of tour operators. Tour operators have been given certain abatement on 4-4-07 and the appellants have already deposited Rs. 30,000/-, out of Rs. 41,797/-. Waiver granted from balance amounts.

  • STO 2007 CESTAT 1308
  • Penalty : Appellant sold second hand taxi, surrendered registration, paid entire service tax with interest. Assistant Commissioner imposed lesser penalty sustainable. Enahncement of penalty in Revision set aside.

  • STO 2007 CESTAT 492
  • Service Tax: Tour operators' service: Scope and liability: Central Govt. issued Notification No. 15/2007-S.T. dated 4-4-2007 under Section 11C of the Central Excise Act r/w Section 83 of the Finance Act, 1994 exempting 40% of the gross amount charged by tour operators operating under a contract carriage permit issued by the proper transport authority for rendering the taxable service (tour operators' service) during the period from 1-4-2000 to 4-2-2004, from payment of service tax under Section 65(105)(n) of the Finance Act. Obviously, the benefit of this Notification was not given to the assessee in the impugned order which was passed prior to issue of the Notification. If this benefit is given, the service tax liability would come down. They had filed service tax returns prior to issuance of the show cause notice.(Para 3).

    Pre-deposit of balance amount waived, stay allowed.

  • STO 2007 CESTAT 1249
  • Stay : Tour operator : Modification application, after abatement of 60% under Notfn.no.15/2007-ST demand reduced. As per Tribunal’s Stay order appellant having already paid substantial amount treated as sufficient compliance. Balance amount waived.

  • STO 2007 CESTAT 399
  • Tour Operator Service: Once the concerned authorities have permitted the appellants for using a particular vehicle as a "tourist vehicle" having verified the various parameters, such a vehicle by virtue of its being used otherwise cannot be declassified and treated as a "non-tourist vehicle".

  • STO 2007 CESTAT 606
  • Tour operator Services: The tourist vehicle has to be read in line with the section 2(43) of Motor Vehicles Act and rule 128 of Central Motor Vehicles Rules, as vehicles were never run as 'tourist vehicles', as envisaged under section 2(43) of Motor Vehicles Act they cannot be classified as Tour operators.

  • STO 2007 CESTAT 444
  • Service Tax: Tour Operators Service: Scope and liability: This Bench on the very issue has held that the activity of Contract Carriers does not fall within the category of Tour Operators Service in the case of Mrs. Praseetha Suresh v. Commissioner of Central Excise, Thiruvananthapuram by Final Order No. 814/2006 dated 19-4-2006 STO 2006 CESTAT 634. The Tribunal has relied on the Madras High Court Judgment rendered in the case of Secretary Federation of Bus Operators Association of T.N. v. U.O.I, reported in STO 2001 Mad 311 and has allowed the appeal.(Para 1,3).

    Pre-deposit waived, stay allowed.

  • STO 2007 Guj 1482
  • Service Tax: Tour operator: Question of law:- Whether “contract carriage” manufactured according to specifications is “tourist vehicle” and whether services provided by the assessee under “contract carriage” makes assessee a “tour operator” under Section 65(115) of the Finance Act, 1944 (sic) (1994)?

    Appeal admitted.

  • STO 2007 CESTAT 224
  • Service Tax: Tour operator services: Contract carriage: Scope and liability: Regional Transport Officer has registered the buses of the appellant under Section 74 of the Motor Vehicle Act, 1988. This Section covers the registration of bus as contract carriage. If the appellant has to be charged service tax as tour operators then buses, which are plied by him should conform to the specification of a tourist vehicle as indicated in Section 2(43) read with Section 82 of Motor Vehicles Act, 1988. In this case, it is not so. Further, on an identical issue, this Bench vide Order No. A/495/WZB/Ah'bad/07, dated 28-2-2007 STO 2007 CESTAT 122 has held as under: "5. It can be seen that Section 2(43) of the Motor Vehicles Act, 1988 defines tourist vehicle as under: "tourist vehicle" means a contract carriage constructed or '(43) adapted and equipped and maintained in accordance with such specification as may be prescribed in this behalf'. It can be noticed that a 'tourist vehicle' has to conform to the specifications given under Rule 128 of the Motor Vehicles Rules, 1988. The said rule 128 of Central Motor Vehicle Rules specifies various special conditions as regards dimensions, structures, passengers entrance and exit, emergency doors, windows, driver entry and exit, etc. From the perusal of the said Rules, to get a vehicle registered as tourist vehicle the assessee has to first conform the vehicle to specifications given under Rule 128 of Central Motor Vehicle Rules, 1988. The impugned order is set aside partly (Para 2).

    Appeal allowed.

  • STO 2007 CESTAT 52
  • Service Tax: Tour operators: Scope and liability: The vehicle used by the appellants for rendering "Call Taxi" service was a tourist vehicle as it was covered by a permit granted under the Motor Vehicles Act/Rules. The question now is whether the vehicle was used as part of the business of operating tours. "Tour" means journey from one place to another irrespective of the distance between such places vide Section 65(94) of the Finance Act, 1994. It is not in dispute that the appellants were charging from the hirers of the taxi on the basis of the distances covered by the vehicle. This is enough to take the service out of the ambit of "tour" as defined under the Finance Act, 1994. The service in question was not taxable under the Act. Penalties waived(Para 3,4).

    Appeal allowed.

  • STO 2007 CESTAT 241
  • Service Tax: Tour Operator' service: Scope an liability: Appellants have already deposited the entire amount. They had been only leasing the vehicles to other tour operators. The other tour operators have paid the Service Tax. In proof of the said submission that the other tour operators paid the tax, appellant has produced all documents to this effect. However, these documents have not been produced during the time of hearing before the Commissioner (A), hence which resulted in confirmation of demands. (Para 1). Appellants as well as the other tour operators have already discharged the duty for the period question. In support of this contention they have produced documents. The other tour operators' payment can also be verified by the Original Authority. In view of the documents produced and submissions made, the prayer for remand of the matter is accepted. The impugned order is set aside and matter remanded to Original Authority to verify the documents produced(Para 4).

    Appeal disposed of by way of remand.

  • STO 2007 CESTAT 413
  • Service Tax: Tour operator and Mandap Keeper: Scope and liability: The adjudicating authority has not discussed, 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 vehicle. An identical issue was decided by Ahmedabad Bench of the Tribunal in the case of CCE & C, Vadodara-II v. Gandhi Travels reported at STO 2007 CESTAT 122. A 'tourist vehicle' has to conform to the specifications given under Rule 128 of Central Motor Vehicle Rules, 1988. The said Rule 128 of Central Motor Vehicle Rules specifies various special conditions as regards dimensions, structures, passenger entrance and exit, emergency doors, windows, driver entry and exit, etc. From the perusal of the said Rules it is very clear that to get a vehicle registered as tourist vehicle the assessee has to first conform the vehicle to specifications given under Rule 128 of Central Motor Vehicle Rules, 1988. The appellant is not operating 'tourist vehicles' as per Section 2(43) of Motor Vehicle Act, read with Rule 128 of Central Motor Vehicle Rules. Demand of service tax on the appellant under the category of 'tour operator' is liable to be set aside. As regards the amount of service tax on account of Mandap Keeper, since the appellant is not challenging the same, the same is uphold(Para 6,7,8).

    Appeal partially allowed.

  • STO 2007 CESTAT 108
  • Service Tax: Tour Operator: Taxi service: Scope and liability: Revenue has not placed any evidence to show that the appellant's Co-operative Society has been collecting taxi fare from the passengers for 'tour operator' service. On the other hand, the appellants have shown that each individual taxi owner is independently running the taxi from the Airport to the place of destination of the customer. Such services cannot be considered as 'tour operator'. They have not undertaken any tour of certain places as defined under the definition. The definition of 'tour operator' under Section 65 is as under :-

    "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 or the rules made thereunder."

    Even in terms of the above definition, the taxi drivers plying the taxi from Airport to places of destination cannot be considered as operating tours in a tourist vehicle. Therefore, the imposition of Service Tax on the taxi drivers that they are registered with the appellant's Co-operative Society is not justified. There is no merit in the impugned order(Para 4).

    Appeal allowed.

  • STO 2007 CESTAT 122
  • Tour Operators : Tourist permit is granted to an operator if he has tourist vehicles. Hence the tourist vehicle has to be read in line with the Section 2(43) of Motor Vehicles Act and Rule 128 of Central Motor Vehicles Rules.   Respondents Vehicles did not answer to the description of 'tourist vehicles', For  purpose of imposing service tax on tour operator it is first and foremost that tour should be operated by a tourist vehicle. Matter decided against Revenue .

  • STO 2006 CESTAT 783
  • Service Tax: Tour operators service: Scope and liability: The tour operator as defined with effect from 10-9-2004 is a person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight seeing or other similar services) by any mode of transport and includes any person engaged in the business of operating tour in a tourist vehicle covered by a permit granted under the Motor Vehicles Act 1988 (59 of 1988) or the Rules made there under. When the revised definition of tour operator was brought into force, the CBEC had issued the clarification, accordingly, the tax had not applied to package tours, which involved transport by road alone. The revised definition made the tax applicable as regards package tours organized also with vehicles other than tourist vehicles. A perusal of the definition and clarification does not appear to bring the activity of the appellants under the coverage of tour operator service. Transport of employees from different places to a common destination like a place of work, such as a factory in the instant case and bringing them back on a daily basis does not appear to be planned, scheduled, organized, arrangement of tours using the buses of the appellants. The appellants have therefore made out a prima facie case against the demand (Para 5).
    Pre-deposit waived, stay allowed.

  • STO 2006 CESTAT 817
  • Service Tax: Tour operator: Road journey between two boarding points whether constitute tour: Scope: The levy for service tax is on service provided 'in relation to tour'. Therefore, the question to be asked is which is the tour in question. Undisputedly, the pilgrim's progress is from Hardwar to the temples in question. Therefore, if there is a tour, it is the pilgrimage to the two temples. There cannot be a tour between two boarding points of a transport hub. The transit is merely incidental to the tour. The road link between the two boarding points is only an incidental link and cannot displace the pilgrimage as the tour. Since there was no tour performed in a tourist vehicle as contemplated in the statute so as to attract the levy, a duty demand made under the impugned order is not sustainable.(Para 2,3).
    Appeal allowed.

  • STO 2006 CESTAT 336
  • Service Tax: Tour operation: Government officers who were not provided with car although they are eligible to it in terms of the service contract are being asked to engage taxi. Such engagement of taxi cannot be said to come within the category of 'tour operator'. If the argument of the Revenue is accepted then all taxis plying including auto rickshaws have to be considered as 'tour operators'. This argument is fallacious and is required to be rejected.(Para 3).
    Revenue appeal rejected.

     

  • STO 2006 CESTAT 272
  • Service Tax: Tour Operator Service: Taxable value: Penalty u/s 76: Authorities below did not make any finding whether the assessee had collected any service tax from its service takers during the impugned period to determine Assessable Value of taxable service in terms of provision contained in Section 67 of the Act. Penalty is a preventive as well as deterrent measure to defeat recurrence of breach of law and also to discourage non-compliance to the law of any wilful breach.(Para 6,7). the decision on which the learned Commissioner (Appeals) relied relates to provision under Central Excise Act, 1944 while present appeal is under Finance Act, 1994 which is self contained code. Provisions of section 76 of Finance Act 94 has fastened liability to mandatory penalty in addition to the tax payable and there is no exception provided except cases covered by Section 80 of the Act. Provisions contained in 11AC of the Central Excise Act and Rule 173Q of the Central Excise Rules 1944 called for pay". This provided discretion whether to levy or not depending on the facts and circumstances of the case, while section 76 of the Finance Act has fastened liability subject to Section 80 of the Act even to excuse in justified cases and findings.(Para 9).
    Revenue appeal allowed.

  • STO 2006 Kar 779
  • Service Tax: Tour Operators’ Service: The services rendered by a tourist operator are, carrying the tourists to tourist spots for sight seeing, purchasing entry or admission tickets, explaining the importance of the places, the specialty or sanctity etc., through guides, providing boarding and lodging facilities at convenient places and rendering such other services. For that purpose, a tourist operator collects amount from the tourists. Whatever service tax levied on the tourist operator will be collected from the tourists and the operator does not pay from his pocket. (para 3)

    Service Tax: Tour Operators’ Service: Taxing Statue: Nature of tax imposed by the statute has to be determined by examining the pith and substance of the statute and by paying more attention to the charging section than to the basis of machinery adopted for assessment and collection of tax. If there is any real ambiguity in respect of any of these components which is not removable by reasonable construction, there would be no tax in law till the defect is removed by the statute. The taxing statute has to be strictly construed. (para 4)

    Service Tax: Tour Operators’ Service: Tax is totally different from service charge. Both components cannot be combined together. It is rightly held that there is no element of sale or purchase in the matter of service tax. It is further held that it is enough if an operator is in the business of engaging taxis for the customers and giving them this service. (para 5)

  • STO 2006 CESTAT 241
  • Service Tax: Tour operator: Scope and liability: Plying taxi from airport to city for customers cannot be considered as tourist services or tour operator. The cited judgment of Usha Breco Ltd. v. CCE, Meerut - STO 2006 CESTAT 816 wherein Tribunal has held that rope way service provided to hill temples cannot be considered as tour operator., which has a bearing on this case.(Para 3).
    Pre-deposit waived, stay granted.

  • STO 2006 CESTAT 675
  • Service Tax: Tour operator: Scope and liability: In the present case, the applicants have tourist permits in favour of the applicants. The revenue relied upon the decision of the Hon'ble Madras High Court in the case of Secretary Federation Bus Operators Association of T.N. v. UOI reported in [STO 2001 Mad 311] and in the case of Sri Pandyan Travels v. CCE reported inSTO 2003 Mad 47 to submit that the contract carriage vehicles are covered under the definition of tour operator provided under the Finance Act, 1999.(Para 3).

    Pre-deposit ordered.

  • STO 2006 CESTAT 337
  • Service Tax: Refund: A perusal of the impugned order reveals that the learned Commissioner (Appeals) has based his decision squarely on a Trade Notice (No. 1/2000 dated 27-4-2000) issued by Pune I Commissionerate, which had categorically held that as per Rule 82 of Central Motor Vehicle Rules, 1989, a tourist permit is granted only for a tourist vehicle and that the term tourist operator would cover any person who holds a tourist permit in respect of any vehicle. Prima facie, no sufficient reasons exist to interfere with the order of the Commissioner(Para 5).
    Revenue stay application rejected.

     

  • STO 2006 CESTAT 311
  • Service Tax: Stay application: The demand as confirmed in the order in original has been dropped by the Commissioner (Appeals) in his order in appeal. The plea that in similar circumstances, the application was allowed by this Tribunal in the case of CCE Raipur v. Shri Prakash Industries Ltd. is not acceptable as the fact that the said stay order is silent about the provision of Rule 41. While it is admitted that this Tribunal has to gear up its machinery 'to secure the ends of justice' as contemplated in Rule 41, sufficient cause is not forthcoming as to how an injustice has been caused by an employee of the Department in following the process of law who is empowered to do so. If this argument is correct, any decision adverse to the Revenue can tantamount to injustice and those favouring the Revenue can be in the nature of securing 'justice'. A perusal of the impugned order reveals that the learned Commissioner (Appeals) has based his decision squarely on a Trade Notice (No. 1/200 (sic) (2000) dated 27-4-2000) issued by Pune I Commissionerate, which had categorically held that as per Rule 82 of Central Motor Vehicle Rules, 1989, a tourist permit is granted only for a tourist vehicle and that the term tourist operator would cover any person who holds a tourist permit in respect of any vehicle. No sufficient reasons exist to interfere with the order of the Commissioner. (Para 3).
    Revenue stay application rejected.

  • STO 2006 CESTAT 539
  • Service Tax: Tour operator: Scope and liability: Even though the applicant was having a contract carriage, it is not clear from the record whether it was an authorized vehicle, as contemplated by Rule 128 by virtue of proper confirmation and answer to the specifications thereunder. Prima facie, the appellant was a tour operator and therefore the ratio of the decision of the Hon'ble Madras High Court in Secretary, Federation of Bus Operators' Association of Tamil Nadu v. Union of India - STO 2001 Mad 311 has been applied by the authorities below. There is, therefore, no case made out for total waiver(Para 1,2).

    Pre-deposit ordered.
     

  • STO 2006 Kar 527
  • Service Tax : Tour Operators’ Service: For levy of service tax on the 'tour operator, the person should be engaged in the business of operating tours as defined under the Act and the tour must be operated under tourist vehicle which is covered by the permit granted under M.V. Act. All these petitioners can be termed as 'tour operators' or 'contract carriage operators' and consequently, they are liable to be levied service tax, whether or not, such taxes are recovered by the petitioners from their customers. As per the new definition, even non-permit holders who operate as 'tour operators' by using tourist vehicles of other permit holders also are covered under the new definition of 'tour operators' and therefore, such persons who provide service e also liable to pay service tax. (para 6,7)

    Service Tax: Tour Operators’ Service: Tax is levied on the Service Provider: Legislative Competence: The service tax is not the tax on income or tax on goods or passengers as contended by the petitioners, inasmuch as, the service tax is a tax on the service rendered by a 'service provider' to a client or customer and it has a distinct nature of taxable event. The two taxes, one levied on passengers or on owner of the vehicles and another levied on service provider may in one sense may overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. Since such a levy of service tax does not find place in the State list, obviously, the center has power to legislate under residuary power of the Parliament i.e., under Entry 97 of the Union List read with Article 248(2) of the Constitution. The measure of taxation cannot be affected the nature of taxation and therefore, the fact that the service tax is levied as a percentage on the gross charges collected by tour operators cannot alter or affect the Legislative competence of the Parliament in the matter. (para 8,10,11,18)

    Service Tax: Tour Operators’ Service: Service provided for remuneration: The chargeable event in two statutes are wholly distinct and different. Service tax is totally different from levy of professional tax on professionals by the State Legislature, which is a one-time tax, unrelated to actual service rendered for remuneration. In the two cases, the fact that there may some overlapping is of no consequence and, in any event, it is justified by the 'aspect doctrine' (para 12)

    Service Tax: Tour Operators’ Service: Transfer of Right to Use: Transfer of right to use is not taxed but the aspect of providing service by the petitioners to their customers is being taxed under the present enactment. Moreover, as noticed earlier, the 'service tax' is leviable on tour operators, as contemplated U/S. 65(78) of the Act, but not merely on taxi operators. Although certain portions of "service" might have been referable to any other entry of the State list, as the service element is "more weighty, visible and predominant", there is no element of deemed sale as contended by the petitioners. (para 14)

    Service Tax: Tour Operators’ Service: “in relation to” meaning of: The phrase 'in relation to' the tour means "in the aid of tour" also. Therefore, if any service is rendered in relation to or in the aid of tour is liable to be taxed. The taxable service is therefore not only means mere providing of car, taxies, contract carriages on a temporary basis but it would also include other facilities supplied in relation to tour as a whole. (para 15)

    Service Tax: Tour Operators’ Service: Abatement: Though, the service tax is leviable on the gross amount charged by the tour operators in relation to the tour, the Government has decided to charge only 40% of the gross amount charged by the tour operators to the customers. (para 18)

    Service Tax : Tour Operators’ Service : Legislative discretion : Having regard to the diverse economic criteria that go into the formulation of a fiscal policy, the legislature enjoys wide latitude in the mater of selection of persons, subject matter, and events for taxation. It is for the Legislature to determine the categories, it should be embrace and merely because certain categories which stand on the same footing as those which are covered by the Legislature are left out, the same would not render the Legislation in any manner discriminatory or violative of Article 14 of the Constitution. (para 20)

  • STO 2006 CESTAT 816
  • Service Tax: Tour operator: Scope and liability: There cannot be a tour between two boarding points of a transport hub. The transit is merely incidental to the tour. Statutory definition of 'tour' conferring an entirely artificial meaning on the commonly understood word, tour'. The words 'irrespective of distance' in the definition of tour only means there could be no argument that tour should be to a distant place. It does 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.(Para 7,9).
    Appeals allowed.

  • STO 2006 CESTAT 234
  • Service Tax: Tour operators and Rent-a-cab: Scope and liability: In the impugned order the fact stated in the opening sentence of para 6.5 of the said order. This sentence reads thus: "It stands established from the letter dated 18-10-2004 by the appellant that they have rendered services as tour operators and have collected service charges for the period 2000 to 2004". The appellate authority further observes that this fact has not been challenged.(Para 2,3).
    Pre-deposit ordered.

  • STO 2006 CESTAT 566
  • Service Tax: Tour Operators: Demand: Hiring of buses: Appellants had bona fide belief that hiring of tourist vehicles would not come within the category of "Tour Operator" and they had made representation to Finance Minister on this count, this is not acceptable. The details of collection of receipts and reimbursement to the other tour operator were never furnished to the Department and the Department only after detailed investigation by their internal audit party has found the non-payment.(Para 3).

    Pre-deposit ordered.
     

  • STO 2006 CESTAT 268
  • Service Tax: Tour operator: Scope: The issue revolves around the fact whether the said vehicle would meet the requirement of Motor Vehicles Act, 1988 read with Rule 128 of the Central Motor Vehicles Rules, 1989. In the present case, there is no material to show that the vehicle has been so constructed as held in the case of Sri Pandyan Travels v. CCE - STO 2003 Mad 47 (Mad.) wherein the High Court has held that contract carriage vehicles and the use therein, since the vehicle is not a tourist vehicle, service tax not payable,. Therefore, there is no reason to grant the stay of operation of the Commissioner (Appeals) order.(Para 4).
    Revenue stay application rejected.

  • STO 2006 CESTAT 733
  • Service Tax: Tour operator: Scope and liability: Appellant is booking tickets for buses and earning commission of about 10%. It is the requirement under Service Tax provisions that a tour operator should be "engaged in the business of operating tours". From the evidence produced, it appears that appellant does not satisfy the requirement of operating tours.(Para 2,3).
    Stay allowed, pre-deposit waived.

  • STO 2006 CESTAT 551
  • Service Tax: Tourist operator: Scope and liability: In the case, the appellants are having both types of permits, stage carriage and tourist permit. This is evident from the record recovered from the premises. In these circumstances, the appellants have a strong case(Para 2).

    Pre-deposit waived.
     

  • STO 2006 CESTAT 634
  • Service Tax: Tour Operator: Scope: Show cause notice of 2002 and 2005 has not specified the period of demand nor has quantified the service tax. In terms of the judgment of the Tribunal ruling rendered in the case of Bayer Diagnostics India Ltd. v. CCE, Vadodara reported in STO 2004 CESTAT 13 held that the demands are not sustainable if the same has not been raised in the show cause notice. Allahabad High Court judgment rendered in the case of Coolade Beverages Ltd. v. CCE, Meerut reported in STO 2004 All 344 held that if the demands have not been specified and raised in the show cause notice, then in such a circumstance, the demands cannot be confirmed. Therefore, the demands cannot be confirmed in vacuum without raising and quantifying the same in the show cause notice. Even on merits, in terms of the Madras High Court judgment, Secretary Federation of Bus Operators Association of T. N. v. UOI reported in STO 2001 Mad 311 the tourist vehicles has to satisfy the specifications laid down in Rule 128 of the Motor Vehicles Rules read with Section 2(43) of the Motor Vehicles Act. The Counsel produced the RC book of the vehicle owned by them, which is in dispute and has shown from the provisions of the Rule 128 read with Section 2(43) of the Motor Vehicles Act that it does not satisfy the specifications. The appellants are not required to be registered in the category of Tour Operator.(Para 5).

    Appeal allowed.

  • STO 2006 Bom 1200
  • Tour Operator Service: Petitioner contested coverage under service tax net under this category: Respondent directed to provisionally register the petitioner and decide the issue, if found covered, the demand on liability on petitioner to be confirmed, until adjudication, if it is held that petitioner is covered under this category and liable to pay service tax no penal action/coercive process shall be taken against petitioner.

  • STO 2006 CESTAT 81
  • Service Tax: Tour operator: Waiver of pre-deposit: The scope of tour operator as defined under Section 96 of the Service Tax which provides that "any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988. The applicants had already a permit granted by the competent authority as per the Motor Vehicles Act. Applicants', contention is that they are operating as stage carriage and not as a contract carriage. Prima facie it is not a fit case for total waiver of service tax.(Para 3).

    Pre-deposit ordered.

  • STO 2006 CESTAT 9
  • Service Tax: Tour Operators: Demand: Service Tax has not been quantified. Commissioner has taken a view that the Service Tax will be liable on quantification carried out by the Deputy Commissioner. Deputy Commissioner has issued a show cause notice to cover the demands under the category of Tour Operators. Show cause notice was drawn on the assessee's plea. The Commissioner has exercised his power and re-issued the show cause notice after a lapse of two years. The proceedings are not sustainable and the demand is also time barred. In the absence of any demand of Service Tax, the penalty cannot be imposed.(Para 3).

    Appeal allowed.

  • STO 2006 CESTAT 96
  • Service Tax: Tour Operator Services: Scope and taxability: The finding of Commissioner (Appeals) that Shri Kabra, Proprietor has admitted that they collected service tax @ 5% from the passengers was contested by the learned Counsel for the appellant stating that no such statement was given by Shri Shyam Lal Kabra. This is correct that Shri Shyam Lal Kabra has not stated that he has collected 5% service tax from the passengers. However, this fact was stated by Shri Satya Narayan Sharma in his statement that from the fare collected from the passengers, they are deducting 5% as service tax. The statement of Shri Shyam Lal Kabra and statement of Shri Satya Narayan Sharma are contrary to each other as far as collection of service tax is concerned. The learned counsel for the appellant argued that statement of Shri Satya Narayan Sharma was not supplied to them. In the circumstances, it is not possible to come to correct conclusion whether the statement of Shri Satya Narayan Sharma was supplied to the appellants or not. Therefore the case requires to be remanded to the Commissioner (Appeals) to examine this aspect as he has given incorrect finding that Shri Shyam Lal Kabra had admitted that they collected the service tax.(Para 7).

    Appeal disposed off by way of remand.

  • STO 2005 CESTAT 220
  • Service Tax: Tour operators: Waiver of pre-deposit: As the applicants were carrying tourists in Maxicabs/taxi and they were charging a certain amount, which are specifically mentioned in the combined tickets, prima facie, it is not a fit case for total waiver of duty.(Para 5).

    Pre-deposit ordered.

     
     

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