TMI Blog2014 (12) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the table indicating the specifications of the ordinary buses of MSRTC and the corresponding specifications for tourist vehicle. Certain certificates have also been produced from independent engineer/persons relating to the specifications of MSRTC buses. In fact the Commissioner (Appeals) in some cases based upon such statement, has allowed the assessee’s appeals on the grounds that there is nothing to prove that the vehicles are tourist vehicles. We also note that these certificates are general in nature and not specific to the actual vehicles which were given for contract carriage operation. MSRTC will have not only ordinary buses but deluxe buses or luxury basis or air-conditioned buses. Some of these vehicles may or may not be meeting the specifications of tourist vehicle. In view of this position, we consider it necessary to set aside the matter in all the nine appeals and remand the matter to the original authority to examine whether any of the contract carriage operation was carried out by MSRTC using a vehicle which meets the specifications prescribed for tourist vehicle under Rule 128 of the Central Motor Vehicles Rules. - matter remanded back - Decided in favour of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994. The Commissioner has taken a view that once the assessee is operating tours under contract carriage, they are liable to be covered as tour operator and, therefore, liable to pay Service Tax. The assessee is in appeal against the said orders on the ground that their vehicles do not meet the specifications for tourist vehicle. Since the vehicles do not meet the specification of tourist vehicles, even when these are being operated as contract carriage, they are not liable to pay Service Tax. The assessee has also detailed the specifications for tourist vehicle as also the specification relating to their ordinary buses to prove the point that their vehicles do not meet the specifications of tourist vehicle. In respect of the remaining six cases, the original authority confirmed the demand. However, on appeal filed before the Commissioner (Appeals), the Commissioner (Appeals) has allowed the appeals mainly on the ground that the issue is settled in favour of the assessee by the Tribunal s decision in the case of CCE v. Gandhi Travels reported in 2007 (6) S.T.R. 430, which has been upheld by the Hon ble Gujarat High Court as reported in 2009 (13) S.T.R. 579 (Guj.) and Prasanna T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the Rules made thereunder. In 2004, the said definition underwent a change and the position from 10-9-2004 onwards became as under :- Tour operator means a person engaged in the business of planning, scheduling, organizing 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 covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder. 9. A perusal of the above definition would indicate that tour means a journey from one place to another irrespective of distance between such places. The definition of tour operator as was existing before 10-9-2004 included any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act or the Rules made thereunder. From 10-9-2004, the said definition underwent a change and the new definition has two parts. The second part of the definition is what was being covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thstanding that separate fares are charged for its passengers . In addition to contract carriage , there is another type known as stage carriage . Stage carriage is defined under Section 2(40) of the Motor Vehicles Act which reads as under :- Stage carriage means a motor vehicle constructed or adapted to carry more than six passengers including the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for the stages of the journey. 12. From the above definitions, we note that stage carriage and contract carriage are the terms used for the type of operation. Tourist vehicle is a term in which certain specifications have been prescribed under Rule 128 of the Central Motor Vehicles Rules. There are certain broad specifications provided in general for motor vehicles. However, for tourist vehicle, the specifications provided relate to more comfort etc. It is important to note that a vehicle meeting the tourist vehicle specifications can also be used for stage carriage operation. Similarly, vehicles meeting the tourist vehicle specifications can also be used for contract carriage operation. Keeping in view the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter is remanded back to the Hon ble Gujarat High Court by the Hon ble Supreme Court as reported in 2010 (17) S.T.R. 513 (S.C.). We have also gone through the judgment of the Hon ble Madras High Court in the case of Sri Pandyan Travels (supra). We note that in all the judgments, the basic thing that has been consistently upheld is that the vehicle should meet the specifications of tourist vehicles as specified under Rule 128 of the Central Motor Vehicles Rules. There has been some ambiguity and in some places, the Revenue has tried to interpret the law in a way that all contract carriages are liable to pay Service Tax under the category of tour operator . Perhaps on the assumption that all contract carriages meet tourist vehicle specifications. We do not find this as correct. We note that this Tribunal in the case of Choudhary Yatra Co. Pvt. Ltd. v. CCE, Nashik reported in 2013 (29) S.T.R. 240, has clearly brought out the distinction. Thus, in our view, in the present set of appeals where there is no dispute that the demands are in respect of contract carriage operation alone, one has to see whether the vehicles used were meeting the specifications of tourist vehicle. In some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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