TMI Blog2016 (6) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 the vehicle engaged should travel without stopping to pick up or set down, anywhere in the journey, passengers not included in the contract. The facts as pleaded in the case show such nature of transport is not being undertaken by the appellant. It is not established by Revenue by evidence, except going by the nature of the permit given to the vehicle owner. Here, for instance thirty different persons undertaking a travel for different distances though in the same vehicle paying prefixed fare cannot come under the business of operation of tour using such vehicle. There is absolutely no evidence to show that appellant made arrangements of accommodation to any destination. After perusing the facts and evidence presented before us and applying the law, we are of the considered view that the demand is unsustainable. - Demand set aside - Decided in favor of assessee. - Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the demand, interest and penalty. 4. The arguments advanced by the learned Senior counsel appearing for the appellant is summarized as under: The appellant is not liable to pay the demand of service tax as the activities of the appellant do not fall within the definition of tour operator service ; the buses of the appellant were having a contract carriage permit. They are not tourist vehicles as defined under Section 2(43) of the Motor Vehicle Act, 1988. A contract carriage which is constructed or adapted or equipped or maintained in accordance with specifications prescribed under rule 128 of the central Motor Vehicle rules can alone be called as a tourist vehicle. As per the definition of tour operator firstly, the vehicle used must be a tourist vehicle, secondly, the vehicle must be covered by a permit granted under the Motor Vehicle Act or Rules made thereunder and thirdly the person must be engaged in the business of operating tours. He argued that neither the buses used by appellant are tourist vehicles nor is the appellant engaged in the business of operating tours. The levy of service tax can be attracted only, if the contract carriage is a tourist vehicle and is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India reported in 2006(2) STR 411(Mad) and also in Sri Pandyan Travels Vs CCE, Chennai reported in 2006(3) STR 151(Mad). Since the tour is defined as a journey from one place to another irrespective of the distance between such places; there is no requirement for planning etc. for such tour. The appellant did undertake such tour and hence liable to service tax. She also contested that the vehicles check reports by RTA cannot be relied to categorise the vehicles as stage carriers. 6. We have heard both the sides and examined the appeal records. The points for consideration are a) whether or not the appellants are liable to service tax under the category of tour operator service during the period 2005-06 to 2009-10; b) to decide the issue at (a) above, the consideration is whether or not the appellant is within the scope of term tour operator as per Section 65(115) of Finance Act, 1994 for the period prior to and also post amendment by Finance Act, 2008; c) whether or not the appellant is engaged in the business of operating tour in a tourist vehicle (upto 2008), tourist vehicle/contract carriage (post 2008); d) whether or not the activity sought to be taxed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus submitted that for the whole period of demand, the appellant is to be considered as a tour operator as they have been operating tours in a tourist vehicle/contract carriage vehicle. We find that this contention requires close scrutiny. 10. First, we take up the reliance place by the learned AR on the decision of Hon ble Madras High Court in the case of Secretary, Federation of Bus-operators Association of Tamil Nadu Vs. UOI [2006(2) STR 411 (Mad.)]. It is seen that the Hon ble High Court held that the first and foremost condition for a person to be held as a tour operator within the meaning of Section 65(52) of the Finance Act is that he must be engaged in the business of operating tours in a tourist vehicle in terms of Section 2(43) of the Motor Vehicles Act and in no other type of vehicles and therefore necessarily such vehicle must conform to the conditions prescribed under Rule 128 of the Central Motor Vehicles Rules. In this connection, we find that the documents submitted by the appellant regarding registration/permit of the vehicles indicate them as contract carriage issued under Rule 174(iii) of the Andhra Pradesh Motor Vehicles Rules, 1989. There is no mention ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of stage carriers in view of such test/check reports. The learned AR contested this on the ground that these check reports only indicate the violation of terms of permit given to appellant and does not establish the appellant to be a stage carrier. Against this, the learned counsel for the appellant submitted that they have produced these evidences only to show that they are not operating any tour for people. They were licensed to ply between pre-approved destinations with pre-fixed fare. There is no common intent of the travelling passengers. In other words, each passenger embarks and disembarks the vehicle as per their intent and on payment of fare due. 12. The Tribunal in the case of CCE, Bhopal Vs. Suresh Kumar Advani [2014(35) STR 138 (Tri. Del.)] examined the scope of tourist vehicle. The Tribunal held that the tourist vehicles are to be vehicles which are covered in terms of Section 2(43) of Motor Vehicles Act read with Rule 128 of the Central Motor Vehicle Rules and the tour operator should be accordingly considered. Similar issue was decided by the Tribunal in the case of Choudhary Yatra Co. Ltd. Vs. CCE, Nashik [2013(29) STR 240 (Tri. Mumbai)] wherein it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts as pleaded in the case show such nature of transport is not being undertaken by the appellant. It is not established by Revenue by evidence, except going by the nature of the permit given to the vehicle owner. Here, for instance thirty different persons undertaking a travel for different distances though in the same vehicle paying prefixed fare cannot come under the business of operation of tour using such vehicle. 15. The learned AR relied on the statement dt. 12/10/2010 of the proprietor to state that the appellant had operated buses from Hyderabad to Shirdi and the service included accommodation and as such he is covered by the term tour operator . The learned counsel for the appellant states that a copy of the statement was not provided to them. However, he submits that the appellant did make some attempt to have such arrangement of accommodation but did not succeed and as such the operations did not take off. We find the assertion based on the statement is not corroborated and even otherwise such statement, if any, made by appellant cannot be extended to all the activities of appellant carried out for different destinations. There is absolutely no evidence to show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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