TMI Blog2014 (1) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Meerut-I v. M/s. Usha Breco Ltd [2013 (2) TMI 357 - UTTARAKHAND HIGH COURT] followed. - The issue decided in favor of assessee by the larger bench. - ST/432/2008 - Final Order No. ST/A/55504/2013(PB) - Dated:- 24-1-2013 - Ms. Archana Wadhwa, Shri Mathew John and Shri D.N. Panda, JJ. Shri Rajesh Gupta, Advocate, for the Appellant. Shri K.K. Jaiswal, SDR, for the Respondent. ORDER The Appellants have leased a ropeway installed by Municipal Board, Mussorie at Mall Road, Mussorie and are engaged in operating it to entertain tourists by carrying tourists from Mall Road to Gun Hill and back to Mall Road. After amendment of Section 65(115) of Finance Act, 1994 to include any means of transport in the definition for tour operator, the Superintendent of Central Excise, Dehradun asked them to deposit service tax on the charges collected by them from the tourists and they paid such tax under protest for the period Oct. 2004 to September 2005. Later they claimed refund of the said tax paid because they were of the view that they will not be covered by the definition of tour. The Assistant Commissioner rejected the refund. Aggrieved by the order the Appellants filed an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on prevailing prior to 10-9-2004. Further the issue dealt with in the said decision was about the road journey from one ropeway boarding point to boarding point to the boarding point of another ropeway. The Tribunal held that if there is a tour, it is between Haridwar to the temples at the other end of the ropeways and not the transit between the boarding points of the two ropeways. 8. The ld. SDR further argues that as the operator of the ropeways the Appellants are planning scheduling, organizing and arranging tours. He also submits that the fact that the State Government is levying entertainment tax for the services provided cannot be reason to hold that service tax is not leviable on the service provided to the tourists. He did not give any explanation why there is no demand for the period after Sep. 2005. 9. We have considered arguments on both sides. We agree with the argument of the ld. SDR that the decision in Usha Breco Ltd. was not with reference to the legal position as applicable to this case and not on the activity impugned in this case. 10. We are also not in agreement with the argument of the Appellant with reference to Entry No. 13 in List-II of the Schedule t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department has not issued demands for the subsequent period and to other operators is relevant for deciding the case at hand. In the first place these submissions of the Appellant are not verified submissions. Secondly in this proceeding we are only deciding the legality and propriety of the impugned order and for the issue to be decided these facts are not relevant. 15. In view of our findings above, we reject the Appeal. 16 . [Per : Archana Wadhwa, Member (J)]. After going through the order proposed by my learned brother, I proceed to record a separate order as I do not find myself in agreement with the findings arrived at by learned Member (Technical). 17. As detailed facts along with the issue involved already stands enumerated in the order proposed by my learned brother, the same are not being repeated to avoid redundancy. The short issue involved in the present appeal is as to whether the running of trolley between two fixed points amounts to tour operator services so as to levy Service Tax on the same. 18. The appellants have reiterated the same grounds which were placed before the Commissioner (Appeals) and stand tabulated by him. For better appreciation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as a tour operator. First that the said tour operator should be engaged in planning, scheduling, organising or arranging tours and such tours have be by any mode of transport. The movement of the trolley between the two fixed ends, where no planning, scheduling, organising or arranging tours is required inasmuch as anybody present at site can get into the trolley ride to the other end of the top hill and can come back not by a specific run of the trolley but can spend any number of hours on the other end and come back by any run of the trolley back to the same spot from where they started. Admittedly, there is no planning, no scheduling, no organising or no arrangement for a specific tours when the trolley operates upward and downwards and anybody is free to get into the trolley and spend whatever time they like at the other end and come back to the same point from where they boarded the trolley. 20. The second question required to be addressed is whether trolley can be considered as a mode of transport. No doubt meaning of transport is movement from one place to another. But applying the above definition for a simplicitor movement of trolley with the aid of power from one fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly understood word, tour . The words irrespective of distance in the definition of tour only means there could be no argument that tour should be to a distant place. If distance is taken as a criterion, an intractable situation would arise, with by each person contending as to what should be the minimum distance. The law seeks only to remove such ambiguity. It does not give such an artificial meaning to the word tour as to make any movement in a tourist bus a tour. To attract the levy, there must be a tour. In the present case, there is no doubt that there was a tour and that tour is the visit to the temples in question. That is performed by not a tourist vehicle but in a ropeway Gondola. The appellant is right in its contention that the road link between the two boarding points is only an incidental link and cannot displace the pilgrimage as the tour. 22. It stands observed in said paragraph that the expression irrespective of the distance appearing in the definition of tour stands utilised for the purpose of clarifying that distance even short, would not be criteria for being included in the tour operator services. However, the Tribunal observed that such an expression ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals). 25. Being aggrieved by such act of the authorities below, when appellant came before Tribunal, difference of opinion arose between the members to decide as to whether the appellant was a tour operator and provided taxable service under Section 65(105)(n) of the Act read with Section 65(115) thereof. While learned Technical Member was of the opinion that ropeway belonging to Municipality taken on lease by the appellant to operate the same was a tour operator and liable to service tax, reverse was the view of learned Judicial Member holding that running of ropeway between two fixed points by the appellant does not amount to tour operator service. 26. In view of the difference above, following question arose for opinion reference :- 1. Whether the activity of the appellant is to be held as covered by the definition of tour operator as appearing in the definition contained in Section 65(115) of the Finance Act, 1994 as held by learned Member (Technical) or the same has to be held as falling outside the purview of the said definition as held by Member (Judicial)? 2. Whether the appeal is required to be rejected as held by learned Member (Technical) or is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he licensee appellant for such planning, scheduling, organizing or arranging for their tours but only avails the facility of ropeway provided by appellant licensee during working hours from 6 A.M. to 11 P.M. on payment of fees prescribed by Clause 8 of licence deed, they were not beneficiary of any planning, scheduling or arranging of tours since tour to be taxable has to follow its preceding activities enumerated by Section 65(115) of the Act. Accordingly, the appellant had not acted as tour operator within the meaning of Section 65(115) of the Act for which the taxing Entry 65(105)(n) thereof is not attracted. Consequently, there shall not be liability to tax following the ratio laid down by Hon ble High Court of Uttarakhand in the case of CCE, Meerut-I v. M/s. Usha Breco Ltd. - 2013-TIOL-20-HC-UKHAND-ST. 30. In view of the above, question No. 1 in difference of opinion is answered negatively stating that the appellant was not a tour operator within the meaning of Section 65(115) of the Finance Act, 1994. For the negative answer to question No. 1, appeal is to be allowed and question No. 2 is answered accordingly. 31. Registry is directed to place the matter before approp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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