TMI Blog2014 (11) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... ter-state or intra-state transportation of passengers, excluding tourism, conducted tours, charter or hire service, from whole of the service tax leviable thereon under Section 66 of the said the Finance Act., which has been made applicable retrospectively w.e.f. 01.04.2000. As the said Notification and the Finance Act, 2011 were not contested by M/s. Capri before the Adjudicating Authority, therefore matter needs examination at the end of the Adjudicating Authority in the light of the decisions of this Tribunal placed before us by the ld. counsel for M/s. Capri and to decide whether M/s. Capri is liable to pay service tax under the category of ‘Tour operator' or not. Therefore, the matter needs examination at the end of the Adjudicating Authority - Matter remanded back M/s. Capri has relied on several decisions of this Tribunal or by the lower authorities, and the decisions are contrary to each other. In view of this, we hold that the extended period of limitation is not applicable in this case. Therefore, the demands confirmed by invoking the extended period of limitation are set aside. Consequently, penalties are also set aside. - Decided in favour of assessee. - Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 75 of the Finance Act, 2011, the activity of M/s. Capri has been exempted from taxable service with retrospective effect from 01.04.2000. Therefore the said Notification and the provisions of the Finance Act, 2011 are relevant to decide the issue in hand. Therefore, it is prayed that M/s. Capri be allowed to bring these additional grounds on record for consideration. 4. Considering the submissions made by the counsel for M/s. Capri, we find that the Notification 20/09 dated 07.07.2009 and the provisions of Section 75 of the Finance Act, 2011 are very much relevant to decide the issue in hand. Therefore, same are taken on record by allowing the miscellaneous application for bringing additional evidence on record. 5. As both the appeals pertain to a common order and are on the issue whether the appellants are liable to pay service tax on their activity under the category of tour operators' prior to 10/09/2004 or thereafter. Therefore, both the appeals are disposed of by this common order. 6. The Ld. Advocate for the appellant submits that for the period prior to 10/09/2004 the appellant are not covered under the definition of tour operators' in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that arranging tours involves arrangements for accommodation, sightseeing or other similar services and since they are not taking any such activities, it cannot be said that they are arranging tours and therefore, they cannot be held liable to pay service tax. 10. The Ld. Counsel also relied on the para 20 of the Circular No. 80/10/2004-ST dated 17/09/2004 wherein the tour operators definition with effect from 10/04/2004 was explained that such package tours attract service tax only if such tours involve modes of transport other than road (say a combination of air-rail-cab travel). The definition of tour operator has been suitably expanded. While the existing levy on tour operators engaged in operating tours in tourist vehicles remains as such, in case of a package tour (which are planned, scheduled, organized or arranged by tour operators), the scope of the levy is being extended by removing the limitation regarding transportation by tourist vehicles only. Therefore, any tour operator planned, scheduled, organized or arranged the tour operator by air, rail, cab travel was also covered under the definition. 11. He also relied on the decision of Hon'ble High Court of Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice are to be confirmed against the appellants and the impugned order setting aside the demands for the period prior to 10/09/2004 is to be set aside. He further submits that M/s. Capri is not entitled to take the benefit of Notification 20/09 dated 07.07.2009 and the Section 75 of the Finance Act, 2011. 16. Heard both sides. Considered the submissions. 17. The issue before us is that whether the activity undertaken by the appellant is covered under the category of tour operators service' prior to 10/09/2004 or post to 10/09/2004. 18. Prior to 10/09/2004 the definition of tour operator' was tour operator' means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) and the rules made thereunder and for the purpose of said definition tour' means... journey from one place to another irrespective of the distance between such places; tourist vehicle' means has the meaning assigned to it in clause (43) of Section 2 of the Motor Vehicle Act, 1988. 19. The said issue was dealt by the Hon'ble High Court of Madras in the case of Secretary Federation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and once it becomes a tourist vehicle so long as it is being used under any permit under the Motor Vehicles Act, by a person who is engaged in the business of operating the tours then, the requirement of the Finance Act would be complete. Inasmuch as the petitioner is a contract carriage operator and not a stage carriage operator, the observation of the Division Bench in respect of spare buses of stage carriages is not applicable. It is also relevant to refer once again the observation in para 41 ........In fact, the most of the petitioners, who are having the contract carriage, are having the permits under Section 88 (9) of the Motor Vehicles Act read with Section 82, which are nothing but tourist tourist permits' issued for the purpose of promoting the tourism and obviously issued to the tourist vehicles as 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..... 21. Therefore, it was observed by the Hon'ble High Court that if a tour operator having its tourist permit under Section 88 (9) of the Motor Vehicles Act, then the vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue a consolidated TDS certificate for the Tax deduction at Source for the whole year. f) Yours buses will normally ply between our factory at Salav and Cheher, Revdanda, Alibag and Dadar as per time schedule and instructions from out authorised representative, from time to time. However, if required the buses will also ply to other destinations (for picnic and any other purpose) with prior intimation and you will ensure temporary permit etc. in time, 25. As per the analyzing of the said agreement, we find that M/s. Grasim Industries Ltd., has planned for providing buses of specific capacity with a particular schedule as per the instructions of their authorised representative from time to time at fixed charges, the appellant have to provide/supply the buses only. We have also seen that at the time of expansion of the definition of Tour Operator on 10/09/2004, the Circular No. 80/10/2004 -ST dated 17/09/2004 clarifies that while the existing levy on tour operators engaged in operating tours in tourist vehicles remain as such, in case of a package tour (which are planned, schedules, organized or arranged by tour operators), the scope of the levy is being extended by remov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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