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2015 (10) TMI 458 - CESTAT NEW DELHI

2015 (10) TMI 458 - CESTAT NEW DELHI - 2016 (42) S.T.R. 94 (Tri. - Del.) - Business Support Service - freight charges (luggage booking charges) recovered by the appellant for transportation of goods on its buses. Held That:- it quite clear that transport of goods on the buses would not come under the category of BSS merely because the goods transported belonged to businessmen, indeed the inclusive part of the above definition leaves no scope for doubt in this regard. - Demand set aside.
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tion under Notification No.20/2009-ST, dated 07.07.2009 as made applicable with effect from 01.04.2000, invokability of the extended period and imposability of mandatory penalty under Section 78 ibid. - Decided against the assessee. - Appeal No. ST/603/2009-CU[DB] - Final Order No. 52281/2015 - Dated:- 30-4-2015 - G Raghuram, President And R K Singh, Member (T) For the Petitioner : Shri Manish Saharah, Adv For the Respondent : Shri Amresh Jain, DR ORDER Per R K Singh Appeal has been filed agains .....

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Business Support Service (BSS) on charges recovered for the goods transported by the appellant on the ground that the goods transported belonged to businessmen and thus related to commercial activity of these businessmen and therefore service rendered was BSS [Section 65 (104c) ibid] and not GTA service. The impugned demand was confirmed invoking the extended period holding that the appellant indulged in suppression of facts. 2. The appellant has contended that (i) out of the total demand under .....

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carriage and therefore it was not providing tour operator service. It also stated that such service has since been exempted under Notification No.20/2009-ST, dated 07.07.2009, which was given retrospective effect from 01.04.2000 vide Section 75 of the Finance Act, 2011. It relied upon the judgement of CESTAT in the case of M/s. Eagle Corporation Pvt. Ltd. Vs. CCE, Rajkot - [2011-TIOL-876-CESTAT-AHM] which remanded the case to the lower authority in the wake of the said Notification. (iii) There .....

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on which liability to pay tax is on the consignor or consignee paying the transport charges. Also, as the freight per consignment was less than ₹ 750/-, it was exempted from service tax. 3. We have considered the facts of the case and contentions of the appellant. As stated earlier, the demand of ₹ 98,424/- in respect of the commission received by the appellant as ticket booking agent for various travel agencies, is not contested. As regards demand of ₹ 9,18,286/- confirmed un .....

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or vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" and therefore transportation of goods on the appellant's buses would amount to transportation of goods in a goods carriage. BSS (more precisely support services of business or commerce) is defied under Section 65 (104c) of the Finance Act, 1994 as under:- "Support Services of Business or Commerce" means services pro .....

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mere perusal of the said definition makes it quite clear that transport of goods on the buses would not come under the category of BSS merely because the goods transported belonged to businessmen, indeed the inclusive part of the above definition leaves no scope for doubt in this regard. Accordingly, the demand of ₹ 9,18,286/- confirmed under BSS is not sustainable. 4. As regards remaining demand under tour operator service, it is a fact that the appellant was granted licence to operate bu .....

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iness 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;" With effect from 10.09.2014, the said definition reads as under:- "Tour Operator" means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight seeing or other similar services) by any mode of transport and includes any person engaged in bus .....

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the appellant using a contract carriage would fall under the category of tour operator service. Indeed in the case of M/s. Ideal Travels & Others Vs. CCE, Mangalore - [2011-TIOL-1850-CESTAT-BANG], CESTAT rejected a similar contention (that the service provided did not fall under the ambit of tour operator service). However, CESTAT in that case remanded the matter with the following words:- "10. However, their alternative plea for the benefit of Notification No.20/2009-ST dt. 07/07/2009 .....

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tion 75 of the Finance Act, 2011. Prima facie, all the assessees before us are entitled to the benefit inasmuch as the impugned demands are for the period from April, 2000. The adjudicating authorities will have to examine their claim for exemption on merits, untrammelled by our prima facie view." It is to be noted that in the above (Ideal Travels) case, CESTAT categorically stated that the adjudicating authority was to examine the applicability of Notification No.20/2009-ST, dated 07.07.20 .....

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