TMI Blog2010 (6) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... ity regarding the scope of levy on tour operator services - whether the vehicles which were plied by the appellants during the period October 2000 to 10-9-2004 conformed to the specifications of the definition of tour operator services the contentions raised by the learned counsel as to the amount paid by them to the various departments has to be reworked out which needs to be appreciated by the adjudicating authority on the evidences which were filed by the assessee before us, for the first time - The appeal is partly allowed by way of remand - ST/273/2007 - 1106/2010 - Dated:- 16-6-2010 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ REPRESENTED BY : Shri M.G. Varadarajan, Advocate, for the Appellant. Shri M.M. Ravi Rajendran, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uivalent amount of penalty under Section 78 and penalty under Sections 76 77 besides demanding interest. Aggrieved by such an order the appellants are before us. 3. Learned counsel appearing on behalf of the appellant would submit that the tour operator services which is sought to be taxed is for the period October 2000 to October 2005. He would submit that the show cause notice is issued on 16th December 2007. As regards tour operator services, it is his submission, that the provisions of Section 65(115) would cover only the tours by roads and that too if the vehicles used are built as per the specifications laid down under Section 128 of Cental Motor Vehicles Rules 1989. It is his submission that the appellant had continued the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 10-9-2004 does not arise as the department was aware of the appellants activity and the show cause notice dated 16-12-2007 can at the most demand duty for a period within a year from the date of issuance of show cause notice. It is his submission that definition of tour operator service prior to 10-9-2004 could not have been brought into play for demanding service tax from them. He would submit that some of the buses which were pressed into service by them were not adhering to provisions of Section 12 of the Motor Vehicles Rules read with Motor Vehicles Act. 5. It is his general submission that the entire demand is time barred as they being a State Govt. body, there cannot be any mala fide intention to evade payment of tax and hence pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities as regards the applicability of service tax on the services rendered by them. Having not done so, the extended period has been correctly invoked. 6. We have considered the submissions made at length by both sides and perused the records. On perusal of the cross objections filed by the revenue, we find that the said cross-objection is in support of the adjudicating authority s finding that the appellant has not discharged the service tax liability as a tour operator. Since the cross-objection is only rendering submissions in support of the adjudicating authority s order, we deem it necessary to dispose off the same. We also find that there is no appeal filed by the revenue in respect of the adjudicating authority s order where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle or a contract carriage by whatever name called, covered by a permit, other than a stage carriage permit, granted under the Motor Vehicles Act, 1988 or the rules made thereunder. Explanation. - For the purposes of this clause, the expression tour does not include a journey organized or arranged for use by an educational body, other than a commercial training or coaching centre, imparting skill or knowledge or lessons on any subject or field; 8. We note that there are no findings whether the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention to evade payment of tax - penalty not leviable We also find strong force in the contentions raised by the learned counsel that the decision of the Coordinate Bench in the case of Indian Petrochemicals Corpn Ltd. v. CCE, Vadodara [2009 (237) E.L.T. 317 (Tri.-Ahmd.)] will also apply as there is a finding that there is no willful evasion of duty in this case. In view of the foregoing reasons, we hold that the impugned order to the extent it confirms the demand of the service tax on the appellant for the period prior to 10-9-2004 is hit by limitation and is liable to be set aside and we do so. 9. As regards the demand of service tax from 10-9-2004, we find that the contentions raised by the learned counsel as to the amount paid b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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