TMI Blog2007 (5) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 3,953/- as service tax on rent-a-cab operator service on the appellant, besides, a penalty of Rs. 70,65,585/- under Section 78 of the Finance Act, 1994 is imposed. Since the issue involved in this case is covered by the decision of this Tribunal we waive the requirement for pre-deposit of the amounts involved and take up the appeal itself for disposal. 2. Considered the submissions made by both sides and perused record. The issue involved in this case is regarding the demand of service tax on the appellant for plying bus between two points as tour operator. It is the contention of the appellant that their bus was carrying passengers/employees of the various factories at Subhanpura, Vadodara and they were not conducting any tour as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given under Rule 128 of the Motor Vehicles Rules, 1988. The said rule 128 of Central Motor Vehicle Rules specifies various special conditions as regards dimensions, structures, passengers entrance and exit, emergency doors, windows, driver entry and exit, etc. From the perusal of the said Rules, it is very clear that to get a vehicle registered as tourist vehicle the assessee has to first conform the vehicle to specifications given under Rule 128 of Central Motor Vehicle Rules, 1988. 6. It can be seen and noticed from the impugned order that the respondent had, in fact, produced certificate issued by Vehicle Registering authority i.e. State Transport Authority that 4 vehicles which are in question were covered under Section 2(7) of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the respondent is not operating 'tourist vehicles' as per Section 2(43) of Motor Vehicle Act, read with Rule 128 of Central Motor Vehicle Rules. 8. The judgment relied upon by the learned SDR in the case of Sri Pandyan Travels (supra) would in fact support the respondent's case, as correctly contended by the learned Advocate. We may reproduce the observation of the High Court which is as under :- "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 hot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above Sub-section would indicate that tourist permit is granted to an operator if he has tourist vehicles. Hence the tourist vehicle has to be read in line with the Section 2(43) of Motor Vehicles Act and Rule 128 of Central Motor Vehicles Rules. We have already held that the respondent's four vehicles did not answer to the description of 'tourist vehicles'. 9. The fact in the current case is that the 4 vehicles were never run as 'tourist vehicles', as envisaged under Section 2(43) of Motor Vehicles Act." It can be seen from the above reproduced portion of the order that issue before us as regards the tour operator service is squarely covered in favour of the appellant. Hence that portion of the impugned order confirming service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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