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2018 (11) TMI 1756 - CESTAT NEW DELHIClassification of services - tour operator services or not - business of running ropeways installed at various places in India - no service tax was paid on the amount charged from pilgrims / tourists for the charges for using the ropeways / Udan Khatolas for visiting Maa Chandi Devi and Maa Mansa Devi - case of Revenue is that the journey from base point of either of two destination to the temple destination of Maa Mansa Devi and Maa Chandi Devi clearly comes under the definition of ‘Tour Operator’ service - Circular No. 80/10/2004-ST, dated 17.9.2004 - HELD THAT:- The tour as per the definition given in the Finance Act, 1994 under section 65 (113) provides that the journey from one place to another irrespective of the distance between such places amounts to a tour. However, the definition of the “tour operator” for the relevant period of demand requires that for being tour operator, a person should be engaged in the business of planning, scheduling, organising or arranging tours and these arrangements may also include arrangements for accommodation, sightseeing or other similar services by any mode of transport. The amended definition after 16.05.2008 of the tour operator also have the above ingredients that a person to be categorised or classified under the tour operator service. The activity undertaken by the appellant is more of a nature of providing transport facility between two fixed places. The definition of “tour operator” in our view, entertains not only a mere transportation of passengers /tourists but also involves a detailed planning of travel, sightseeing and other requirements for a tour. It needs planning and then detailed arrangements are to be made for transport, stay, sight seeing etc., such an activity will certainly classifiable as the tour operator but in the present case, appellants basically provides mere transportation facility which is open to pilgrims / tourists persons even villagers to go uphills and therefore, in our view, same cannot be classified and charged to service tax under the category of ‘tour operator’ service. Though the definition of “tour operator” has got a change since 10.09.2004, however, we feel that after the amendment to the definition of tour operator, it has been made a very elaborate and specific and that for an activity to be classified as “Tour operator” service, the elements of detailed planning, scheduling, organising the tour which may include arrangement for accommodation, sight seeing or other similar services including the arrangements of the mode of transport need to be present - Since all these elements are absent in the present case, the appellant is not liable to pay service tax under the category of ‘tour operator’ service. Appeal allowed - decided in favor of appellant.
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