TMI Blog2012 (11) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... our of appellant. - ST/35/08 - A/505/2012/CSTB/C-I - Dated:- 22-5-2012 - Ashok Jindal, Shri P R Chandrasekharan, JJ. For Appellant: Shri Pramod Kumar Rai, Adv. For Respondent : Shri Y . K . Agarwal, Additional Commissioner (A.R) Per: Ashok Jindal, Member (Judicial) 1. The appellants are in appeal against the impugned order confirming the service tax demand of Rs.1,03,65,342/- along with interest and equivalent amount of penalty imposed under Section 78 of the Finance Act, 1994 and Rs.1,000/- under Section 77 of the Finance Act, under the category of tour operators service . 2. The facts of the case are that the appellants are providing following services against the remuneration received by them: a) Bus reservation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax paid by the appellant was refunded. The definition of tour operators was amended with effect from 10/09/2004 thereafter the appellants are paying service tax on the activity of Seat Reservation Agreement (SRA), Nashik Darshan (ND) and Tour Extension (TE), which is not in dispute. He further submits that the activity of Bus Reservation Agreement does not fall under the category of tour operators as the same does not qualify the definition of tour operators because the appellants are not providing tours to their customers/clients in tourist buses. As per the definition of tour operator, the tour is to be provided in a tourist buses covered by a permit. He further submits that it is not disputed that buses plyed by them are not touri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sustainable. 5. On the other hand, the Ld. AR for the revenue opposed the contentions raised by the Ld. Advocate and submits that in this case the appellants are operating tour into a contract carriage bus and they are liable to pay service tax as held by the adjudicating authority. Moreover, in the case of Pandyan Travels (supra) the Hon'ble High Court of Madras has held that if the tour is operated under the contract carriage bus is also covered under tour operators services. Therefore, they are liable to pay service tax. He further argued that the Ld. Counsel has contended that 10/09/2004 onwards on the activity of BRA, ITDC is discharging service tax liability under the category of tour operators but for other clients, namely, comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1988 or the rules made thereunder. 8. Initially, the tour operator means any person who holds a tourist permit granted under the rules made under the Motor Vehicles Act, 1988 and operating tours in a tourist vehicle. This levy came on 01/09/97. On 18/07/98 there was a certain amendment took place wherein tour operator means any person engaged in the business of operating tour in a tourist vehicle covered by a permit granted under the Motor Vehicle Act, 1988 or Rules thereunder. 9. From the above definition, tour is to be operated in a tourist vehicle and that is to be covered under a permit issued under the Motor Vehicle Act or Rules thereunder. Now the question arises What is Tourist Vehicle? . The said tourist vehicle has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tour operator. In fact in the case of Pandyan Travels, the Hon'ble High Court of Madras has given the following observations: Inasmuch as the petitioner is a contract carriage operator and not a stage carriage operator, the observation of the Division Bench in respect of spare buses of stage carriages is not applicable. It is also relevant to refer once again the observation in Para 41 .... In fact, the most of the petitioners, who are having the contract carriage, are having the permits, under Section 88(9) of the Motor Vehicles Act read with Section 82, which are nothing but tourist tourist permits issued for the purpose of promoting the tourism and obviously issued to the tourist. Whereas contemplated under that section. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready held that the respondent's four vehicles did not answer to the description of tourist vehicles . 14. From the above observations, it is clear that in the case of Pandyan Travels (supra) it is observed by the Hon'ble High Court that if the operator is having tourist permit under Section 88 (9) of the Motor Vehicles Act read with Section 82, then the vehicle is a tourist vehicle. 15. We have examined the facts of this case, wherein it is admitted position that 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. Therefore, the demands confirmed against the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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