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TMI Blog2012 (11) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, under the category of "tour operators service". 2. The facts of the case are that the appellants are providing following services against the remuneration received by them: a) Bus reservation agreement (BRA). Under this category they supply ordinary buses (not tourist vehicles) to other tour operators as well as commercial or non-commercial concerns on rent basis. b) Seat reservation agreement (SRA) c) Nashik Darshan (ND) d) Tour extension (TE) 3. The department is of the view that the activity undertaken by the appellant is covered under the category of tour operators service, which is liable to service tax with effect from 01/09/1997 and the appellant has not paid the service tax under the category on their activity. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buses. As per the definition of tour operator, the tour is to be provided in a tourist buses covered by a permit. He further submits that it is not disputed that buses plyed by them are not tourist buses as the same has been admitted by the adjudicating authority in the impugned order. He further submits that moreover this bus reservation agreement, the buses were provided on rent to the tour operators mainly to ITDC. The ITDC being a "tour operators" have discharged the service tax liability in the same activity. A small remuneration has been received from other customers viz., commercial concerned/schools, where they have not paid the service tax as they are not providing any tour to their clients. Moreover, their activity is more specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Counsel has contended that 10/09/2004 onwards on the activity of BRA, ITDC is discharging service tax liability under the category of tour operators but for other clients, namely, commercial organization/schools who are not the tour operators, no service tax is being paid. Therefore, the appellants are liable to pay service tax for their activity of BRA post 10/09/2004 for services provided to their clients other than ITDC. 5. Heard both sides. 6. On careful consideration of submissions made by both sides, we find that there are some admitted facts that the appellants are discharging service tax liability except the activity of BRA (post 10/09/2004) and from 01/06/2007 the appellants are discharging their service tax liability either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is to be covered under a permit issued under the Motor Vehicle Act or Rules thereunder. Now the question arises "What is Tourist Vehicle?". The said tourist vehicle has been defined in clause 43 of Section 2 of the Motor Vehicles Act, 1988. 10. As per the said provisions "tourist vehicles" means a contract carriage constructed or adapted and equipped or maintained in accordance with such specifications as may be prescribed in this behalf. The specifications are "tourist vehicle" has to confirm, which given under Rule 128 of the Central Motor Vehicles Rules, 1988. Therefore, "tourist vehicles" means a contract carriage which confirms the specifications given under Rule 128 of the Central Motor Vehicle Rules, 1988. It is further defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but tourist "tourist permits" issued for the purpose of promoting the tourism and obviously issued to the tourist. Whereas contemplated under that section. Therefore, there will be no question of entertaining their objections and they will straightaway be covered under Section 65(52) of the Finance Act..." On the reading of the above reproduced portion of the judgment of the Hon'ble High Court it can be seen that the Hon'ble High Court came to the conclusion based on the fact that the petitioner therein were holding permits under Section 88(9) of the Motor Vehicles Act, read with Section 82. The provisions of Section 88(9) of the Motor Vehicles Act reads as under :- "(9) Notwithstanding anything contained in sub-section (1) but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the appellants are not liable to pay service on their activities for the period prior to 10/09/2004. Therefore, the demands confirmed against the appellant for the period prior to 10/09/2004 are set aside. 16. The next issue before us is that whether the appellants are liable to pay service tax for their activity of BRA post 10/09/2004 or not. 17. It is contended by the Ld. Counsel that they are providing their buses on rent to ITDC who is a tour operators and discharging service tax liability under the category of tour operator. In view of these observations, we are of the view that the service tax cannot be demanded twice on the same activity as the ITDC has discharged service tax liability on this activity. Therefore, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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