TMI Blog2016 (9) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the definition - Decision in the case of L.N. Gupta Transport Co. [2016 (2) TMI 547 - CESTAT MUMBAI] and others cases followed. - Decided in favor of assessee. - ST/130/2006 - Final Order No. A/30664/2016 - Dated:- 10-8-2016 - Ms. Sulekha Beevi, C.S., Member(Judicial) and Mr. Madhu Mohan Damodhar, Member(Technical) Ms. A.S.K.Swetha, Advocate for the Appellant Shri Guna Ranjan, AR for the Respondent ORDER The appellants have been hiring vehicles for transportation of the employees of M/s. HPCL from their residences to their place of work. 1.1 The issue involved in the instant case is demand of Service Tax of ₹ 6,20,822/- on the services of transportation of employees of M/s.HPCL from the respective re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such specification as may be prescribed in this behalf. 2.3 As per the statutory definition of Tour Operator use of Tourist Vehicle is a pre-requisite to come under the ambit of tour Operator Service. The Hon ble High court Madras in the case secretary, Federation of Bus Operations Association of Tamil Nadu Vs UOI reported in 2006 (2) STR 411(Mad) held that the first and foremost condition for a person to be held as tour operator within the meaning of Section 65 (52) of Finance Act 1994 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tamil Nadu Vs UOI reported in 2006(2) STR 411(Mad). 3. On behalf of the department the Ld AR Mr.Guna Ranjan opposed the appeal and argued that the vehicles being contract carriages would become automatically tourist vehicle. He also placed reliance on the judgment of Madras High Court in Secy. Federation of Bus operators Assn. of T.N.Vs UOI 2006 (2) STR 411 (Mad). 4. After careful consideration of the submissions made by both sides we find that the issue is covered by the following judgments. i) L.N. Gupta Transport Co. Vs CCE, Nagpur 2016(42) STR 491 (Tri-Mum). ii) Jai Somnath Transport Vs CST, Mum 2016 (41) STR 660 (Tri-Mum) iii) Capricorn Transways Pvt Ltd CCE, Raigad 2015 (37) STR 1027 (Tri- Mum) 5. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 72(2)(xvii) can never become a tourist vehicle . We hasten to add, however, that before any such vehicle is treated as a tourist vehicle , it will have to conform to the conditions laid down for the tourist vehicle in Rule 128 of the Motor Vehicles Rules. That would by far be the only condition. 36 At this stage, all the learned counsels pointed out that the petitioners spare buses may not be the tourist vehicles which 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 t he rules framed thereunder then, such petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding vehicles of a specific capacity with a particular schedule. We also note that at the time of expansion of the definition of Tour Operator on 10-9-2004, CBEC Circular No. 80/10/2004-S.T, 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 service tax for planning/scheduling/organizing/arranging the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in the business or planning, scheduling, organizing or arranging package tour of their own as provided under the new definition of tour operator service but were adhering to the conditions 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 . As already discussed, the vehicles are also not tourist vehicles so as to be covered under the second part of the definition. 6. From the above discussions we find that the issue in dispute is well settled in favour of appellant. This being so, the demand raised in the impugned order is unsustainable and liable to be set aside, which we hereby do. In the result the appeal is allowed with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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