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2014 (11) TMI 165 - AT - Service TaxTour Operator service - supply the contract carriage business (not tourist vehicles) - whether the activity undertaken by the appellant is covered under the category of ‘tour operators service' prior to 10/09/2004 or post to 10/09/2004 - Invocation of extended period of limitation - Held that:- If a tour operator having its tourist permit under Section 88 (9) of the Motor Vehicles Act, then the vehicle shall be treated as a tourist vehicle. Admittedly, in this case the appellant are neither having the tourist permit nor operating in the tourist vehicle. Therefore, the appellant are not held to be liable to pay service tax under the category of tourist operator prior to 10/09/2004. Appellants provide/supply the contract carriage business (not tourist vehicles) to their customers on their demand only - M/s. Capri has claimed the benefit of Notification 20/09 dated 07.07.2009 read with Section 75 of the Finance Act, 2011 which exempts the service provided to any person, by a tour operator having ‘contract carriage permits' for inter-state or intra-state transportation of passengers, excluding tourism, conducted tours, charter or hire service, from whole of the service tax leviable thereon under Section 66 of the said the Finance Act., which has been made applicable retrospectively w.e.f. 01.04.2000. As the said Notification and the Finance Act, 2011 were not contested by M/s. Capri before the Adjudicating Authority, therefore matter needs examination at the end of the Adjudicating Authority in the light of the decisions of this Tribunal placed before us by the ld. counsel for M/s. Capri and to decide whether M/s. Capri is liable to pay service tax under the category of ‘Tour operator' or not. Therefore, the matter needs examination at the end of the Adjudicating Authority - Matter remanded back M/s. Capri has relied on several decisions of this Tribunal or by the lower authorities, and the decisions are contrary to each other. In view of this, we hold that the extended period of limitation is not applicable in this case. Therefore, the demands confirmed by invoking the extended period of limitation are set aside. Consequently, penalties are also set aside. - Decided in favour of assessee.
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