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M/s L.N. Gupta Transport Co. Versus Commissioner of Central Excise, Nagpur

2015 (12) TMI 1316 - CESTAT MUMBAI

Demand of service tax - Tour operator service - whether the activity of transportation services, that is carrying employees of companies from specific points to the factory/establishment and back can be categorized under “Tour operator” service as defined under Section 65(105)(n) read with Section 65(115) of the Finance Act - Held that:- neither the adjudicating authority nor the Commissioner (Appeals) had brought out the clear distinction between the levy on tour operator service pre - 2004 and .....

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ction 2(43) of Motor Vehicles Act read with Rule 128 of Central Motor Vehicles Rules alone would come within the definition of “Tourist Vehicles” in Section 65(115) and be covered under the Tour Operator service - intent of the legislature was to expand the levy of service tax for planning/scheduling/organizing/arranging the package tours for all modes of travel. It was not intended to expand the scope to cases such as the present one. In the present case, the appellants provide/supply the contr .....

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terms during the period specified for an agreed commercial consideration for transportation of the company/factory employees, at specified places through specified routes and timings. It is also not shown by Revenue that the appellant had authority to pick-up or drop the said persons at any place/route of their choice or they had flexibility to alter the route or timings according to their own choice or whims and fancies. Therefore the employees of only those companies/factories etc., who had e .....

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nditions laid down with various customers. Therefore it cannot be said that they were covered under the first part of the amended definition of “tour operator”. - Decided in favour of assessee. - APPEAL NO. ST/303/10-Mum - Dated:- 6-10-2015 - SHRI P.S. PRUTHI, MEMBER (TECHNICAL) AND SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Nilesh Sindhwani, C.A. For the Respondent : Shri S.L. Karoliya, Asst. Commr. (A.R.) ORDER Per: P.S. Pruthi: The issue in this case is whether the activity .....

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a person who is engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the Rules made there under. With effect from 10.09.2004 tour operator means any person engaged in 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 the business of operating tours in a tou .....

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le 128 for tourist vehicles. Lastly, the contention is that they would not be covered under Service Tax levy even after 10.09.2004 because they are not engaged in the business of planning, scheduling and organizing or arranging tours. 3. The learned A.R. reiterates the finding of the Commissioner (Appeals) in the impugned order. 4. We have carefully considered the facts and submissions made by both sides. 5. Firstly, we find that neither the adjudicating authority nor the Commissioner (Appeals) .....

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) S.T.R. 411 (Mad.) holding that the vehicles which are covered under the definition in Section 2(43) of Motor Vehicles Act read with Rule 128 of Central Motor Vehicles Rules alone would come within the definition of Tourist Vehicles in Section 65(115) and be covered under the Tour Operator service. The Hon ble High Court held: 20 If we turn to the definition of the contract carriage , which is defined in Section 2(7) of the Motor Vehicles Act, it becomes clear that there is identical language u .....

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buses may not be the tourist vehicles within the meaning of Section 2(43) of the Motor Vehicles Act and, therefore, they are not liable. Indeed, if the vehicles owned by the petitioners are not the tourist vehicles within the meanings of Section 2(43) of the Motor Vehicles Act read with Rule 128 of the rules framed thereunder then, such petitioner would not be required to be registered under the Finance Act. The learned Senior Counsel for the Department very fairly accepted this position. How .....

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n of the Finance Act. Needless to mention that if they are not the tourist vehicles , the provisions of the Finance Act would not apply and more particularly the provisions of Section 65(51) and the other allied sections like Section 66(3), etc. It is clear that to be covered under the tour operator service the vehicle most be a tourist vehicle under Section 2(43) of the Motor Vehicles Act read with Rule 128 of the Motor Vehicles Rules, 1989. In the present case the vehicles are not tourist vehi .....

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ST dated 17/09/2004 clarified that while the existing levy on tour operators engaged in operating tours in tourist vehicles remain as such, in case of a package tour (which are planned, scheduled, organized or arranged by tour operators), the scope of the levy is being extended by removing the limitations regarding transportation by tourist vehicle only which means it will include air-rail-cab travel also. From the above clarification, the intent of the legislature was to expand the levy of serv .....

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