TMI Blog2010 (11) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... e - ST/258 & 381 OF 2008 - 1536 & 1537 OF 2010 - Dated:- 11-11-2010 - M.V. RAVINDRAN, P. KARTHIKEYAN, JJ. ORDER M.V. Ravindran, Judicial Member - These two appeals are directed against Order-in-Original No. 3/2008 (Service Tax) dated 29-2-2008. Since both the appeals are arising against the findings given in the said Order-in-Original, they are disposed of by common order. 2. Revenue is in appeal in Appeal No. ST/381/2008 and assessee is in appeal in Appeal No. ST/258/2008. 3. The relevant facts that arise for consideration are the assessee-appellant (herein referred to as appellant) was providing services of Rent-a-Cab scheme operator services and Tour Operator s services. On intelligence, the officers visited the premises of the appellant and conducted the search, found some relevant records and documents pertaining to the services rendered by the appellant. On scrutiny of records, it was noted that the appellant had rented the cabs to various customers and collected certain amounts by raising bills and they have not obtained Service Tax registration from the department for the services rendered, subsequently, they obtained the Service Tax regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supply of buses and cabs. It is his submission that no Service Tax was paid or released to the appellant and hence, he was under the impression that no Service Tax is payable. It is his submission that on being informed by the authorities, they have discharged 90 per cent of Service Tax and ready to pay the balance and interest thereon. He submits that penalty imposed under section 78 of the Finance Act, 1994 be set aside. He would rely upon the decision of the Hon ble Supreme Court in the cases of Tamil Nadu Housing Board v. CCE 1994 (74) ELT 9, Collector of Central Excise v. Chemphar Drugs Liniments 1989 (40) ELT 276, Pahwa Chemicals (P.) Ltd. v. CCE 2005 (189) ELT 257. As regards the confirmation of amount under section 11D, it is his submission that amount payable in this case is not collected as Service Tax as there is no taxable liability as held by the Adjudicating Authority under the category of Tour Operator s services. He would submit that the invoices indicated an amount as Service Tax for the period 2005-06 but no amounts were collected. He would submit that they have produced the evidences for non-collection of the amounts but the Adjudicating Authority has not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Vehicles Act. In the absence of any such evidence or record, it is evident that they do not hold any tourist permit and the permits issued were for contract carriage only. She would submit that the judgments of the Hon ble High Court of Madras in the case of Secretary, Federation of Bus Operators Association of Tamil Nadu v. Union of India [2007] 6 STT 49 and the dismissal of an appeal by the Hon ble Supreme Court against the said judgment as reported on 2003 (157) ELT A144 would indicate that the appellant is liable to discharge the tax liability as a tour operator. It is her submission that the proceedings which have been dropped should be confirmed and penalties and interest should be imposed on the appellant. 6. In the rejoinder, learned counsel would submit that the definition of tour operators would clearly indicate that the vehicles should be granted permit under Motor Vehicles Act for arranging tours. He would submit that the said definition has undergone a change from 15-7-2008, which is not relevant for the current case. He would submit that the decision of Hon ble High Court of Punjab and Haryana in the case of CCE v. Kuldeep Singh Gill [2010] 27 STT 224 as relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of balance dues. In our considered view, the bona fide view entertained by the appellants could not be faulted with. Hence, invoking the provisions of section 80 of the Finance Act, 1994 we hold that the penalty imposed by the Adjudicating Authority under sections 77 and 78 of the Finance Act, 1994 for not discharging the Service Tax liability under Rent-a-Cab services is liable to be set aside. The same provisions will also apply in case of penalties not imposed under section 76 for which revenue is in appeal. 7.2 In sum, the appeal filed by the appellant with regard to setting aside the penalty is allowed and appeal filed by the revenue for imposition of penalty under section 76 is rejected. 7.3 As regards the demand of an amount confirmed under section 11D, we find that the Adjudicating Authority himself has come to a conclusion that during the period in consideration i.e., 2005-06, the appellant is not liable to pay any Service Tax for the services rendered by him under the tourist services. To come to such a conclusion, he has gone through the entire records of the appellant and has noticed that the revenue has not adduced any evidence that the vehicles which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition in section 2(43) of the Motor Vehicles Act. There is no need to prove his liability to Service Tax if the vehicles used were found to be registered as tourist vehicles or he was operating the vehicles under the tourist permit. There is no evidence that he was operating such vehicles under a tourist permit. He was operating these vehicles under the contract carriage permits. The vehicles used have to be held as tourist vehicles only if the same fulfilled the criteria laid down in section 2(43) of Motor Vehicle Act. As per section 2(43), Tourist vehicle means a contract carriage constructed or adapted and equipped and maintained in accordance with such specification as may be prescribed in this behalf; It can be noticed that a tourist vehicle has to conform to the specifications given under Rule 128 of Central Motor Vehicles Rules, 1988. The said Rule 128 of Central Motor Vehicle Rules specifies various special conditions as regards dimensions, structures, passenger entrance and exit, emergency doors, windows, driver entry and exit, etc. However, there is no record or evidence that the vehicles used were tourist vehicles as defined above. It is, thus, evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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