TMI Blog2015 (11) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) TMI 915 - CESTAT MUMBAI) was considering the services rendered by the appellant therein as to whether this service would fall under the category of “tour operator services”. The appellant in that case was providing contract carriage and stage carriage to various individuals/customers and it was considered as the said service would fall under the category of “tour operator service”. Tour operator service means the person should be engaged in the business of planning, scheduling or arranging the tours. In the absence of any such activity undertaken, the services cannot be considered as tour operator service and liable to be taxed. - appellant herein has not planned, scheduled or organized tours for their passengers. In our considered view the ratio of this Tribunal s judgement in the case of T.N. State Trans. Corpn. Kumbakonam Ltd. (2009 (2) TMI 90 - CESTAT CHENNAI) will be applicable in the case in hand and we have to hold that the appellant is not covered under the category of tours operator service - impugned order is unsustainable and liable to be set aside - Decided in favour of assessee. - Appeal No. ST/375/11 - - - Dated:- 30-9-2015 - Mr. M.V. Ravindran, Member (Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enger is given the facilities of transportation, stay and sight seeing as package tour. Appellant discharged the hotel bills etc. directly though the hotel booking accommodation is not done by the appellant but through the agents appointed for this purpose. He would then submit that somewhat similar issue had cropped up before the Bench in the case of Divisional Controller - 2014 (33) STR 168 (Tri. Mum), and T.N. State Trans. Corpn., Kumbakonam Ltd. 2009 (14) STR 760 (Tri. Chennai) wherein the definition and the requirement of the service provider to get cover under tour operator service has been explained by the Bench. It is his submission that by that explanation, the activity undertaken by the appellant would not fall under the category of package tours. He would also submit that during the period in question, the appellants records were audited by the department auditors and vide Audit Report dated 26.03.2009, the auditor had raised various other discrepancies in the records but never raised any objection as to the activity of the Jet Escapes package would fall under the category of tour operator services. He produced a copy of the said audit report and submitted that the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, 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 Act, 1988 (59 of 1988) or the rules made thereunder; 6.1 It can be seen from the above reproduced definition that the said definition would cover a person who is engaged in the business of planning, scheduling, organizing or arranging tours and who is engaged in the business of operating tours in tourist vehicle or a contract carriage. As already produced herein above, appellant is operating airlines which undertakes transportation of passengers by air. In order to enhance their business of selling airline tickets, appellant had offered Jet Escapes Packages to their passengers for a specified destination. On perusal of Jet Escapes Package details as downloaded from website, we find that the said advertisement specifically states that Return air travel in Economy class, inclusive of taxes, Airport transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e means the person should be engaged in the business of planning, scheduling or arranging the tours. In the absence of any such activity undertaken, the services cannot be considered as tour operator service and liable to be taxed. The same view is echoed by the Tribunal in the case of T.N. State Trans. Corpn. Kumbakonam Ltd. (supra) wherein the Bench held as under:- 4. I have carefully considered facts of the case and the rival submissions. The impugned demand was issued in the wake of amendment to the scope of the levy under the category tour operator vide Finance Act, 2004. Prior to the amendment introduced in the Finance Act, 2004, the levy covered tours operated using tourist vehicles as defined in Section 2(43) of the Motor Vehicles Act and the rules made thereunder. This position was clarified by the Honble High Court of Madras in the case of Secretary, Federation of Bus Operators Association of Tamil Nadu v. UOI (supra). However, w.e.f. 10-9-2004, the scope of the levy was expanded to include tours operated by any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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