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2016 (6) TMI 1268 - AT - Service TaxLevy of service tax - Tour operator service - It appeared to department that various chartered/contract/tour services provided by APSRTC to the public fall under the “ tour operator” services as defined under the clause (115) of Sec.65 of the Finance Act, 1994 and that APSRTC were providing various tour operator services and evading payment of Service Tax - Held that: - The departments do not have a case that the buses of the assessee used for carrying passengers as per contract to destinations conform to such specifications so as to make them fall within the definition of contract carriages. It is not disputed that the vehicles used by the assessee for the impugned services are “stage carriage” vehicles and are carrying out the impugned activities only on the basis of temporary permits issued by A.P. Transport Authorities. They do not at all become contract carriages as they do not conform to the definition of contract carriage in Section 2(7) of M.V. Act. The requirement of permit granted under the Motor Vehicle Act, 1988, 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 reservation of the department on this aspect is that the conclusion arrived at by the learned Commissioner (Appeals) is prima facie wrong as much as the tourist vehicle operated by the respondent will not be out of the purview of the said definition. The reservation is without any evidence and it neither challenge the veracity or the contents of the certificate. As regard the other grievance of the appellant that the learned Commissioner (Appeals) has not taken into consideration the fact that the lower adjudicating authority has himself seen the vehicle and found that the vehicles predominantly covered the specifications in Rule 128 of Motor Vehicle Rules, 1988. The impugned activities carried out by the assessee will not attract the definition of “Tour operator” under section Section 65 (52) of Finance Act,1994 prior to 10.09.2004 and under Section 65 (115) for the remainder period covered in this case - appeal allowed - decided in favor of assessee.
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