2006 (4) TMI 8

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..... alty for not having been registered in the category of Tour Operator. This show cause notice was dropped by the Deputy Commissioner by Order-in-Original No.50/03 dated 9.4.2003. The Commissioner did not initiate action for review till 1.4.2005, on this day show cause notice No. 1/05 (ST) was issued calling upon the appellants to explain as to why penalty should not be imposed for not having registered themselves as Tourist Operator. Reference to the earlier show cause notice dated 30.5.2002 has also been made. In both the show cause notices, the period of demand and the Service Tax has not been quantified. 2. The appellants took the stand that the proceedings initiated is not as per law and inasmuch as the Service Tax is concerned, the dem .....

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..... tered as a contract vehicle. 3. The learned Counsel attacks the order on the ground that their vehicle does not satisfy the specifications of a tourist vehicle in terms of the said Section and Rule. He produces the copy of the RC book and refers to the provisions of Rule 128 to shows that the specifications, dimensions seating capacity and other structures, door, etc., are not in terms of the specifications laid down in Rule 128 of the Motor Vehicle Rules. He, further, submits in terms of the Tribunal ruling rendered in the case of Bayer Diagnostics India Ltd. Vs. CCE, Vadodara reported in 2005 (182) ELT 487, the demands are not sustainable if the same has not been raised in the show cause notice. The Mumbai Bench has relied on large numbe .....

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..... the judgment of the Allahabad High Court and the Tribunal rulings cited supra, the demands cannot be confirmed in vacuum without raising and quantifying the same in the show cause notice. Even on merits, in terms of the cited Madras High Court judgment, the tourist vehicles has to satisfy the specifications laid down in Rule 128 of the Motor Vehicles Rules read with Section 2 (43) of the Motor Vehicle Act. The Counsel has produced the RC book of the vehicle owned by them, which is in dispute and has shown from the provisions of the Rule 128 read with Section 2 (43) of the Motor Vehicle Act that it does not satisfy the specifications. The defence taken by the Counsel is examined and found to be correct. In the light of the para 36 of the Ma .....

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