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2014 (7) TMI 542 - ALLAHABAD HIGH COURTTour and travel services - levy and collection of service tax from the assessee where principal tour operator has paid service tax - double taxation - foreigner tourists - packaged tour - valuation - inclusion of reimbursement of expenses - amounts received by the appellant from Principal Tour Operator (PTO) as reimbursement of actual expenses - validity of circular creating the service tax liability - extended period of limitation - levy of penalty - Held that:- the appellant is not able to adduce any evidence in the form of assessment order of the Principal Tour Operator or any other documents issued by the service tax authorities to substantiate the claim that service tax has been paid on the entire amount by the Principal Tour Operator, which includes the amount paid to the appellant. Merely on the basis of the certificates issued by the Principal Tour Operator enclosed with the memorandum of appeal, the claim of the appellant cannot be accepted inasmuch as it is doubtful whether these certificates have been filed before the authorities below. Extended period of limitation - Held that:- The position regarding the taxable services provided to any person in relation to a tour has already been explained in the year 1997 and in 2001 itself. Therefore, the appellant ought to have given the information about the supplementary services being provided in ST-3 return or otherwise. In any view of the matter, such information without any doubt ought to have been given after 10.9.2004 when the definition of Tour Operator has been amended, but the appellant wilfully failed to disclose such information. Further, appellant has availed the benefit of abatement/exemption under the Notification No. 39/97-ST to the extent of 60% of the total amount charged treating the entire services provided as a package tour, including the facilities such as Air and Railway Tickets, porterage, fooding and lodging, monuments visit services, guide services, and general assistance services etc. This clearly shows that the appellant was fully aware that it is a package tour in which supplementary services are also included, but failed to disclose the receipts towards supplementary service - Decided against the assessee. Supplementary services claimed to have been received by way of reimbursement, on actual basis - Held that:- the amount paid to the appellant towards supplementary services, apart from the payments received towards transport services are liable to be included in the gross amount and are the value of taxable service which are liable to service tax. Waiver of penalty levied u/s 78 invoking the provisions of section 80 - Held that:- Tribunal was in error in coming to the conclusion that there would be no occasion to establish a reasonable cause within the meaning of section 78, once, the extended period of limitation had been validly invoked under the proviso to section 73(1). If the analogy which has been used by the Tribunal is extended, it would have to be held that section 80 would have no application whatsoever to a case which falls within the purview of section 78 since as we have noted, the language of section 78 is similar to the language which is used in the proviso to section 73(1). Accepting such an interpretation would involve re-writing the provisions of section 80 by excluding the provisions of section 78 from the non-obstante clause which is contained in section 80. - therefore while confirming the levy of service tax, penalty set aside - Decided partly in favor of assessee.
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