TMI Blog2012 (11) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax from their customers. - Extended period of limitation to be invoked - in favor of revenue. Penalty - held that:- when penalty under Section 78 is sustained, there is no justification for sustaining a separate penalty under section 76. Notification 15/2007 has, for the period from 01.04.2000 onwards, has exempted service tax on value in excess of 40% of the gross amount - held that: - direct the original authority to requantify the tax liability and interest and the penalty under section 78 after allowing the benefit of exemption - Appeal No. ST/50 of 2006 - 405 of 2012 - Dated:- 30-5-2012 - P. G. CHACKO And M. VEERAIYAN, JJ. Rajesh Kumar for the Appellant. N. Jagdish for the Respondent. ORDER M. Veeraiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They are not having control over the journey and are merely functioning as tourist vehicle operator. Tour operator is different from tourist vehicle operator. (b) Every "journey from one place to another" cannot be considered as 'tour' in the absence of ingredients of tour such as planning, scheduling. (c) For attracting levy under the category of Tourist Operator Services', "tour should be in a vehicle covered by a tourist permit". Burden is on the revenue to prove that the activities fall under the taxable category of service. No evidence was relied upon to show that the vehicles provided by various individuals were having tourist permits except presuming that the vehicles cannot be operated for tour without tourist permits. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from both sides and perused the records. 6.2 The appellants are registered as service tax provider under the category of Tourist Operator Service'. They have paid service tax in respect of such services using their own vehicles. The dispute relates to the services rendered by them to their customers using the vehicles which they have taken on hire from third parties. It is not in dispute that the appellants have raised bills for the service charges including service tax in respect of the said services rendered using such vehicles. They have, in fact, collected the service tax under the category of Tourist Operator Services', and, therefore, the claim that they passed on the entire amount except 5% of the commission to the vehicle owners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax from their customers. Therefore, invocation of extended period of limitation for demand of service tax and imposition of penalties on the appellants are justified. However, in the facts and circumstances of the case, we are of the opinion that when penalty under Section 78 is sustained, there is no justification for sustaining a separate penalty under section 76. 6.6 The claim of the appellant that their activities should be treated as falling under 'Business Auxiliary Service' and only the amount of commission retained by them should be subjected to service tax is not acceptable. It is a clear case of service under the category of "Tour Operator Services". The activities undertaken by the appellants using their own vehicles and those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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