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M/s A.V.D. Suresh Versus Commissioner C&C. E, Visakhapatnam-I

Tour operator services - Taxability of services of transportation of employees of M/s. HPCL from the respective residences and to their place of work - Held that:- Appellant were not engaged 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 amen .....

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ppellant 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 residences and to their place of work . The value of the work done in the three years for which the Show Cause Notice is issued is ₹ 1 .....

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Appellant has been granted temporary permits under rule 174 (v) of AP Motor Vehicles Rules 1989 for 3 months ii) At Sr.No 12 of the Permit it is mentioned that this vehicle is permitted to be used as a contract carriage in accordance with the terms of the contract. 2.2 Period involved in the present case is 2001-02 & 2002-03 and at the material time the definition of Tour Operator service, Tourist Vehicle read as follows. Tour Operator definition: tour operator means, any person engaged in .....

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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 nec .....

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ent to get the activity of the appellant covered under Tour Operator Service hence the demand is not sustainable. In this connection she placed reliance on the following citations. i) SVR Tours and Travels Vs CCE & ST Hyderabad 2016(6) TMI 774-CESTAT, Hyderabad The period in the above case is 2005-06 to 2009-10, even though the case relates to period post to that of the present case in hand, appellant wishes to place reliance on the legal principle adopted by the Hon ble Madras High court de .....

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, Federation of Bus operations Association of 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 i .....

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nder; Firstly, we find that neither the adjudicating authority nor the commissioner (Appeals) had brought out the clear distinction between the levy on tour operator service pre-2004. As regards the period pre-2004, the issue has been dealt with total in Tribunal s Order in the case of M/s. Jai Somnath Transportation and Others - A/3557/3565/2015/STB, dated 6-10-2015 [2016 (41) S.T.R. 660 (Tri.-Mum.)]. In the said order reliance was placed on various judicial pronouncements including the Hon ble .....

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the contract carriage , which is defined in Section 2(7) of the Motor Vehicles Act, it becomes clear that there is identical language used therein (with emphasized words). Therefore, it cannot be said that the said vehicle which is covered under 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 Vehicl .....

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ired to be registered under the finance Act, the learned Senior Counsel for the department very fairly accepted this position. However, he pointed out that it would be for the petitioners to raise their objections before the concerned authorities under the finance act and their objections would be decided upon. Therefore, the petitioners are permitted to raise the objections before the concerned authorities issuing the notices and the authorities will decide as to whether the petitioners vehicle .....

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ehicle 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 vehicles under Rule 128 ibid. Therefore, the demand for the period pre-2004 is not sustainable. As regards the period post 10-9-2004 we may examine whether the appellants are engaged in the business of planning, scheduling, organizing or arranging tours. We find that the appellants have only planned for providing vehicles of a specific capaci .....

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icle 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 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 contract carriage business (not tourist vehicles) to their customers on their demand only. Therefore, the activity of the .....

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