TMI Blog2012 (4) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... sing to classify the services rendered by the appellant under the category of tour operator s service under Section 65(115) of the Finance Act, 1994 and demanding Service Tax of ₹ 2,15,895/- for the period from 10-9-2004 to 31-3-2007 under Section 73(1) of the said Finance Act, interest thereon under Section 75 and proposing to impose penalties under Sections 76, 77 78 of the said Finance Act. 3. The case was adjudicated by the Assistant Commissioner, vide Order No. 45/2008, dated 24-3-2008, who dropped the proceedings. The said order was taken up in review by the Commissioner of Central Excise under the provisions of Section 84(1) of the Finance Act, 1994 and the Commissioner passed the impugned order in revision. The Commissioner held that in view of the amended definition of tour operator s service effective from 10-9-2004, the activities undertaken by the appellant is rightly classifiable under tour operators service and accordingly, the appellant is liable to pay Service Tax thereon. Accordingly, he confirmed the demand of Service Tax of ₹ 2,15,895/- under Section 73 of the Finance Act, 1994, interest thereon under Section 75 ibid and imposed an equivalent p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Hon ble High Court of Gujarat and remanded the matter back to the Hon ble High Court for reconsideration. 5.1 The ld. AR also relies on the judgment of the Tribunal in a stay matter in the case of Parveen Travels (P) Ltd. v. CST, Chennai, reported in 2008 (11) S.T.R. 357 (Tri.-Chennai) wherein it has held that after the change in the definition of tour operators effective from 10-9-2004, even if the tour is undertaken in a vehicle not covered by a tourist permit, the said activity will come under the tour operator s service and would therefore, be liable to Service Tax and accordingly pre-deposit of Service Tax involved was ordered. 5.2 The ld. AR also relies on the judgement of the Hon ble High Court of Madras in the case of Sri Pandyan Travels v. CCE, Chennai-II reported in 2006 (3) S.T.R. 151 (Mad.) = 2004 (163) E.L.T. 409 (Mad.) wherein it was held that even if the tour is undertaken in a contract carriage vehicle, the activity will come under the purview of tour operator s service and contract carriages would be covered within the term tourist vehicle . The ld. AR also relies on the judgment of the Hon ble Apex Court in the case of Secretary, Federation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether with or without any permit granted under the Motor Vehicles Act, 1998.Thus, the amended definition effective from 10-9-2004 varies widely in scope than that was obtaining prior to 10-9-2004. 7.2 As regards the reliance placed on the judgment of this Tribunal in the case of Gandhi Travels cited supra (which was upheld by the Hon ble High Court of Gujarat), it is seen that the said decision of Hon ble High Court of Gujarat has been set aside by the Hon ble Apex Court. As regards the reliance placed by the appellant on the Tamil Nadu State Transport Corporation (Kumbakonam) Ltd. and Remanan Travels case cited supra. These orders have been passed by a Single Member Bench and the said order is based on a clarification issued by the Ministry of Finance vide Circular No. 80/10/2004-S.T., dated 17-9-2004 wherein it was clarified that while existing levy on tour operators engaged in operating tours in tourist vehicles remains as such, in case of package tour (which are planned, scheduled, organised or arranged by tour operators) the scope of the levy is being extended by removing the limitation regarding transportation by tourist vehicles only . This clarification has been interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of tour operator under Section 65(115) does not make it mandatory that the vehicle operated by the tour operator should conform to particular specifications. The expression any mode of transport employed under Section 65(115) of the Finance Act, 1994 indicates this legal position. In other words, for the period after October, 2004, want of prima facie case for the appellants is absolute. 7.3 As regards the reliance on the Tribunal s order dated 20-10-2011 granting stay, the said order pertains to the period from 1st October, 2001 to 30 September, 2006 and was passed placing reliance inter alia, on the judgment of the Hon ble High Court of Gujarat in the case of Gandhi Travels among others. The position has changed since then as the Hon ble Apex Court has set aside the Gandhi Travels judgment and, therefore, no more reliance can be placed on the said judgment of the Hon ble High Court of Gujarat. In the instant case the demand is for the period from 10-9-2004 onwards when the amended definition of tour operator comes into force which is wider in scope than what was in force earlier. Thus, we are, prima facie, of the view that the appellant has not made out any case fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order under sub-section (1) to the adjudicating authority, such application shall be heard by the Commissioner of Central Excise (Appeals), as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of the Chapter regarding appeals shall apply to such application. Explanation. - For the removal of doubts, it is hereby declared that any order passed by an adjudicating officer subordinate to the Commissioner of Central Excise immediately before the commencement of clause (C) of Section 112 of the Finance (No. 2) Act, 2009, shall continue to be dealt with by the Commissioner of Central Excise as if this section had not been substituted. 11.1 The show cause notice for review of the adjudication order has been issued on August, 2009 therefore, prima facie the show cause notice has been issued without jurisdiction. 11.2 Further while considering the stay application of the applicant, the applicant has relied on the stay order passed by this Tribunal in the case of Jai Somnath Transport v. Commissioner of Service Tax, Mumbai-II on 20th October, 2011 wherein while considering the stay application the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out a case for waiver of pre-deposit. Accordingly, entire demand of Service Tax, interest and penalties is to be stayed during the pendency of the appeal. Sd/- (Ashok Jindal) Member (Judicial) DIFFERENCE OF OPINION Following difference of opinion is placed before the Hon ble Vice-President/HOD :- (a) Whether the applicant be directed to make a pre-deposit of ₹ 2,15,895/- as observed by Member (Technical) in paragraphs 7 and 8 herein above. OR (b) There is no requirement of pre-deposit as held by Member (Judicial) as the show cause notice is without jurisdiction as well as relying on the decision of Jai Somnath Transport (supra). Sd/- (P.R. Chandrasekharan) Member (Technical) Sd/- (Ashok Jindal) Member (Judicial) 13. [ Order per : Sahab Singh, Member (T) (as Third Member) ]. - I have perused the order passed by the learned Member (Technical) Shri P.R. Chandrasekharan and learned Member (Judicial) Shri Ashok Jindal and the difference of opinion referred to me. 14. The above orders have already narrated the facts of the case and discussed the issue at length. Therefore, I do not feel the necessity of repeating the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing the definition of contract carriage as well as a copy of the permit granted to them by the Regional Transport Authority. He also relied on, apart from the decision already cited before the Division Bench, the decision of the Bombay High Court dated 19-3-2012 in the case of Deepak Jhunjhunwala and Others [2013 (290) E.L.T. 365 (Bom.)] wherein in two cases complete waiver was granted by the Tribunal and in third case pre-deposit was ordered, the Court has ordered that no valid reason was given by the Tribunal for demanding pre-deposit in the third case. Accordingly, the Tribunal s order was set aside and the Tribunal was directed to dispose of the appeal without pre-deposit. 19. Ld. Additional Commissioner (AR) appearing for the Revenue submitted that the issue of jurisdiction raised by the ld. Counsel is not valid as substitution of Sec. 84 is applicable only for fresh orders passed by the officers subordinate to Commissioner after the date of amendment in Finance Act, 2009. He specifically pointed out that in Explanation to Section 84 in the Finance Act, 2009, it is categorically stated that if any order passed by an adjudicating officer subordinate to the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial) in paragraph 2.1 of his order that show cause notice has been issued without jurisdiction. 22. Regarding the contention of the applicants that they are covered by the exemption Notification No. 20/2009-S.T., dated 7-7-2009, I find that this issue was not dealt by either of the Members in their orders as it is raised at the first time before me. I find that under the Notification, service provided or to be provided to any person by a tour operator having a contract carriage permit for inter-state or intrastate transportation of passengers is exempted. After going through the permit issued to the applicants by the Regional Transport Authority, I find that the permit is issued to carry employees of their company within area of Nashik Muncipality only. This permit is not an inter-state or intrastate permit. Therefore, the applicants will not be covered by this exemption Notification. 23. The next issue is regarding the application of the decision in the case of Jai Somnath Transport to the present case. As pointed out by the ld. Member (Judicial), the stay order in Jai Somnath Transport case was rendered on the ground that there were contrary views on the issue by various au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal decision has been taken by the Board to grant this exemption to the tour operators having contract carriages with inter-state or intrastate permit retrospectively. As held by me in paragraph 10 above, since the applicants are not having any inter-state or intrastate permit, they are not entitled to exemption under Notification No. 20/2009-S.T., dated 7-7-2009. Therefore, I am of the view that Jai Somnath Transport s case cannot be relied upon in the present case in view of the changed situation after the retrospective applicability of the Notification and I am therefore, of the view that there is no case for complete waiver of pre-deposit in the present case. 24. As regards the reliance on the decision of the Bombay High Court in the case of Deepak Jhunjhunwala others, I find that in that case there was common investigation against all the three parties and the Tribunal has waived pre-deposit in two cases and demanded pre-deposit in third case. This order of the Tribunal in the third case was set aside by the Hon ble High Court. I find that in the present case, the facts of the case are totally different and therefore, the ratio of the Bombay High Court s decision is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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