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2016 (6) TMI 774 - AT - Service TaxTour Operator Service - The appellant s contention is that he is not a tour operator. He is not involved in the business of planning, scheduling, organising or arranging tours by any mode of transport. - Scope of Section 65(115) of the Finance Act, 1994, during the period 2005-06 to 2009-2010 - Held that:- prior to amendment made in 2008, the appellant would not fall into the category of tour operator as the vehicles are not tourist vehicles. Again the definition of tour operator has two segments. One in the first portion dealing with person engaged in the business of planning, scheduling etc. of tours by any mode of transport and secondly the inclusive portion of the definition covering any person engaged in the business of operating tours in a tourist vehicle. - there is no evidence with supporting documents to sustain the case of department that the appellant operated tours in a tourist vehicle. Situation post-2008. - Held that:- The definition implies something more than ordinary travel or transport undertaken. In a situation where admittedly the appellant is transporting different persons with prefixed fair to different destinations in the same vehicle without a common contract, the activity will be more akin to transport of passengers rather than operating tour. More so, when we consider the definition of contract carriage, it is clear that the vehicle engaged should travel without stopping to pick up or set down, anywhere in the journey, passengers not included in the contract. The facts as pleaded in the case show such nature of transport is not being undertaken by the appellant. It is not established by Revenue by evidence, except going by the nature of the permit given to the vehicle owner. Here, for instance thirty different persons undertaking a travel for different distances though in the same vehicle paying prefixed fare cannot come under the business of operation of tour using such vehicle. There is absolutely no evidence to show that appellant made arrangements of accommodation to any destination. After perusing the facts and evidence presented before us and applying the law, we are of the considered view that the demand is unsustainable. - Demand set aside - Decided in favor of assessee.
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