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TMI Blog2014 (1) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the order the Appellants filed an appeal with Commissioner (Appeals) who rejected their appeal. Aggrieved by the order of the Commissioner (Appeals) this appeal is filed before the Tribunal. 2. First it is necessary to record the relevant entries in Finance Act, 1994. Sub-sections (105)(n), (113), (114) and (115) of Section 65 of Finance Act, 1994 are as under : (105)(n) "taxable service" means any service provided to any person by a tour operator in relation to tour; (113) "tour" means a journey from one place to another irrespective of the distance between such places; (114) "tourist vehicle" has the meaning assigned to it in clause (43) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988); (115) "tour operator" means any person engaged in the business of planning, scheduling, organising 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the argument of the Appellant with reference to Entry No. 13 in List-II of the Schedule to the Constitution of India. This entry implies only that the control supervision, licensing etc. of ropeways will be with the State Governments. The powers of the State to levy taxes are specified at Entries 45 to 63 of the said list. None of these items list taxes on ropeways, though taxes on entertainment is listed at S. No. 62 of the list. So also "taxes on goods and passengers carried by road or on inland waterways" is specified at S. No 56 of the list. Still there is service tax on services of "goods transport agencies" and the validity of such levy has been upheld by Courts. 11. So the main contention to be examined is whether the appellant is a tour operator. That is to say whether the activity of the Appellant is covered by the definition under sub-section (115) of Section 65 whether the Appellant is doing any of the activities of planning, scheduling, organising or arranging tours. It is to be noted that the later part of the definition includes "any person engaged in the business of operating tours in a tourist vehicle". Thus the words "organising" and "arranging" is used to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same grounds which were placed before the Commissioner (Appeals) and stand tabulated by him. For better appreciation, the same are reproduced below :- "2. The Adjudicating Authority has emphasized on the phrase "by any mode of Transport". Respectfully, the appellant would like to place that if the basic ingredient is missing i.e. planning, scheduling, organizing or arranging tours and only the phrase "by any mode of transport" is considered, in such a circumstance, activities of Cycle Rickshaw/Auto Rickshaw/Lift operators etc. would also become eligible to service tax in this category of service which is not the intention of legislature. Therefore, in absence of the basic ingredients of planning, scheduling, organizing or arranging tours, the activities cannot be held to be liable to service tax. 3. The appellant had operated a rope way which is a machine in itself, wherein Iron Rope is connected with Pillars at two ends and trolley operates upwards and downwards with the aid of power. That the said machine by no stretch of imagination be considered as a mode of transport. That for a specific mode of transport, at least registration with transport Authority is must, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovement from one place to another. But applying the above definition for a simplicitor movement of trolley with the aid of power from one fixed point to another fixed point cannot be held to be a mode of transport. The appellants have rightly contended that in that case, any activity of any type of movement would amount to tour operator services. It is well settled that the entries have to be understood and interpreted in the manner in which legislature intended it to be and in the manner in which they are understood in the common parlance. Movement of trolley between two fixed points can never be held to be understood by a common person as a tour. It is also seen that such joy rides are never pre-organised or pre-scheduled and any person makes up his mind to take such a ride, on the spur of a moment. As such, I am of the view that both the above ingredients are missing in the said activity so as to bring it under the definition of tour operators. 21. At this stage, I may draw support from the Tribunal's decision in the case of Usha Breco Ltd. v. CCE, Meerut-I [2006 (4) S.T.R. 88 (Tri.-Del.)]. In that case, ropeway journey was being operated to visit the temples of Maa Mansa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat distance even short, would not be criteria for being included in the tour operator services. However, the Tribunal observed that such an expression cannot be given an artificial meaning so as to make any movement from one place to another as covered under the said expression. Service Tax is on the services provided in relation to tour. Tour has specific connotation and the movement of the trolley from one fixed point to another fixed point and on continuous running position cannot be held to be a tour even from a common man's point of view. The same is more in the nature of part of entertainment industry and fun industry. Even in the case of Usha Breco Ltd. referred supra, the pilgrimage performed by a ropeway gondola was not the subject matter of disputed issue of leviability of Service Tax and it was only the distance covered by the vehicle between two boarding points on which the demand was raised by the Revenue. In view of the above, I hold that the appellants activities do not fall under the category of tour operator services so as to levy the Service Tax. DIFFERENCE OF OPINION 1. Whether the activity of the appellant is to be held as covered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 required to be allowed as held by Member (Judicial)?" 27. Heard Revenue and also considered written submissions of the appellant as per request made by application dated 21-11-2012. Revenue supports the adjudication and first appellate order. 28. The essential fact of the case is that the appellant was a licensee of Nagar Palika Parisad, Masoori to operate ropeway for a period of 5 years from 1-4-2002 to 31-3-2005 against public tender issued and licence deed executed on 27-4-2000. Nagar Palika Parisad as licensor and owner of ropeway had allowed the appellant as a licencee to run the same under certain restrictive covenants in terms of Clauses 7, 8, 9, 10 and 11 of the licence deed. In terms of Clause 7 there was restriction of number of passengers to be allowed to travel in each cabin while Clause 8 restricted the fees chargeable from each passenger. Clause 9 obliged the licencee to insure the ropeway and Clause 10 required passengers to be insured by the appellant licen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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