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2015 (12) TMI 1316 - AT - Service TaxDemand of service tax - Tour operator service - whether the activity of transportation services, that is carrying employees of companies from specific points to the factory/establishment and back can be categorized under “Tour operator” service as defined under Section 65(105)(n) read with Section 65(115) of the Finance Act - Held that:- neither the adjudicating authority nor the Commissioner (Appeals) had brought out the clear distinction between the levy on tour operator service pre - 2004 and post - 2004. As regards the period pre - 2004, the issue has been dealt with total in Tribunal’s Order in the case of M/s Jai Somnath Transportation and Others [2015 (11) TMI 835 - CESTAT MUMBAI]. In the said order reliance was placed on various judicial pronouncements including of the Hon'ble Madras High Court in the case of Secy. Federn. Of Bus-Operators Assn. of T.N. Vs. Union of India [2001 (4) TMI 7 - MADRAS HIGH COURT] holding that the vehicles which are covered under the definition in Section 2(43) of Motor Vehicles Act read with Rule 128 of Central Motor Vehicles Rules alone would come within the definition of “Tourist Vehicles” in Section 65(115) and be covered under the Tour Operator service - intent of the legislature was to expand the levy of service tax for planning/scheduling/organizing/arranging the package tours for all modes of travel. It was not intended to expand the scope to cases such as the present one. In the present case, the appellants provide/supply the contract carriage business (not tourist vehicles) to their customers on their demand only. Therefore the activity of the appellant is not covered by the definition of “Tour Operator” for the period post 10-09-2004. Lower authorities have given no reasoning to state that the activity of the appellants post 10.9.2004 gets covered under the first part of the definition of Tour Operator service. As already observed above, the appellant were providing vehicles/buses to their customers on agreed terms during the period specified for an agreed commercial consideration for transportation of the company/factory employees, at specified places through specified routes and timings. It is also not shown by Revenue that the appellant had authority to pick-up or drop the said persons at any place/route of their choice or they had flexibility to alter the route or timings according to their own choice or whims and fancies. Therefore the employees of only those companies/factories etc., who had entered into a contract had the authority to board the buses at pre-determined pick-up points at fixed timings agreed upon. No element of planning or scheduling is therefore shown to have been done by the appellant. They only act at the company’s behest-II. Thus, we find from the above that appellant were not engaged in the business of planning, scheduling, organizing or arranging package tour of their own as provided under the new definition of “tour operator” service but were adhering to the conditions laid down with various customers. Therefore it cannot be said that they were covered under the first part of the amended definition of “tour operator”. - Decided in favour of assessee.
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