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TMI Blog2016 (6) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide the matter afresh with reasons and finding framing the issues and stipulated a period of three months from date of communication of the order. It is understood that as the appeal was initially disposed by circuit bench and as the bench was not available and due to heavy pendency of matters, the case could not be taken up earlier at the Bangalore Bench of CESTAT, where the matter was pending. After the Regional Bench at Hyderabad started functioning w.e.f 14-12-2015, the case was transferred to Hyderabad and listed for hearing today. Brief facts: 3. On the intelligence gathered that appellants were evading service tax liability, the department issued summons to the appellants for production of documents. Accordingly they submitted, permits, registration certificate of the vehicle, details of balance sheet for the period 2005-2006 to 2009-2010. After verification and scrutiny of documents, the department entertained the view that appellants have rendered the service of Tour operator service as defined under Section 65(115) of the Finance Act, 1994, during the period 2005-06 to 2009-2010. A show cause notice dated 22-10-2010 was issued invoking the extended period of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried to their destination as per ticket and there is no obligation to carry them back. The appellant is not undertaking any conducted tour operations. The vehicles are used as stage carriages by collecting individual charges from passengers going to different places for different purpose. To substantiate his arguments, the learned counsel relied on various vehicle check reports in which it is noted that individual passengers are picked up from different places for individual purpose of journey and tax has been collected per seat as in the case of a stage carriage; that the appellant is not engaged in the business of operating tours by tourist vehicles; that the impugned order is passed without addressing this basic issue and that the same is not sustainable. As an alternative plea, he submitted that the impugned service are exempted service during the relevant period as per notification No.20/2009-ST dated 07-07-2009. 5. Per Contra, the learned AR Ms. Sudha Koka supported the findings in the impugned order. She submitted that as per the definition, the use of contract carriage would fall into the category of tour operator if the contract carriage has a permit other than a stage c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 as below:- Section 65(115) Tour Operator means any person engaged in the business of planning, scheduling, 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; 9. The appellant s contention is that he is not a tour operator. He is not involved in the business of planning, scheduling, organising or arranging tours by any mode of transport. The learned counsel for the appellant strongly contested the finding of the original authority that they are tour operators . On this issue, the learned AR argued that prior to 2008 the appellants are covered under the inclusive portion of the definition which states that any person engaged in the business of operating tours in a tourist vehicle will be a tour operator. Post-2008 any person operating tours even in a contract carriage by whatever name called covered by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehicle in terms of above provisions as tourist vehicle is required. The original authority s conclusion based on implication is not tenable. The decision of Hon'ble Madras High Court as above is relevant here. Now it is clear that prior to amendment made in 2008, the appellant would not fall into the category of tour operator as the vehicles are not tourist vehicles. Again the definition of tour operator has two segments. One in the first portion dealing with person engaged in the business of planning, scheduling etc. of tours by any mode of transport and secondly the inclusive portion of the definition covering any person engaged in the business of operating tours in a tourist vehicle. We find that prior to 2008 amendment, there is no evidence with supporting documents to sustain the case of department that the appellant operated tours in a tourist vehicle. 11. Now we will refer to the situation post-2008. After 2008, the definition was extended to cover tour operation in any vehicle other than stage carriers. Even here the appellants have produced evidence to the effect that though they were permitted as contract carriers they were operating more as stage carriers for passengers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation where the travelling public use transport facility on payment of a fare with no other operation on the part of the appellant. 14. The definition of tour operator post-2008 can be split up into two parts for better appreciation. "Tour Operator means -- Any person engaged in the business of planning, scheduling, 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; (emphasis supplied) The definition implies something more than ordinary travel or transport undertaken. In a situation where admittedly the appellant is transporting different persons with prefixed fair to different destinations in the same vehicle without a common contract, the activity will be more akin to transport of passengers rather than operating tour. More so, when we consider the definition of contract carriage, it is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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