9911796707
TMI Blog2016 (11) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; On further inquiry it was revealed that the appellant had not only provided services under Tour Operator but were also engaged in receiving income on account of Hotel Booking, which was covered under the category of 'Business Auxiliary Service'. On which the appellant neither obtained registration nor paid service tax nor filed any return under the category of 'Business Auxiliary Service'. Show cause notice was issued demanding the service tax under Section 73(1) and also proposing the imposition of penalty and interest under Sections 75, 76, 77 & 78 of the Finance Act, 1994. The adjudicating authority confirmed the proposal made in the show cause notice. Aggrieved by the Order-in-Original the appellant filed appeal before Commissioner (Appeals) who maintained the said Oder-in-Original and the appeal filed by the appellant was rejected. The Ld. Commissioner (Appeals) in the impugned order upheld the demand on the ground that the appellant were engaged in operating three buses between Pune and Sahar Air Port and back, in three schedules on a daily basis and the Buses in which they carried passenger have been granted necessary permit under a contract carriage by the RTO, Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says that any such vehicle which answers the description of tourist vehicle under Rule 128 and which would run under contract would become a tourist vehicle. In the present case, the specifications of buses do not conform to the specification provided under Rule 128 of the Central Motor Vehicles Rules, 1989. Therefore, the judgment in the case of Sri Pandyan Travels (supra) is not applicable in the present case. He further submits that the appellant categorically made submission before both the lower authorities that the appellant did not carry any tour during the financial year 2000-01 and 2001-02. During which no service tax liability arise and therefore the tax liability if any arise, shall confine to the period 2002-03 and 2003-04 which comes to Rs. 1,12,046/-. However, the Ld. Commissioner (Appeals) did not even whisper anything on this factual aspect. 4. Shri V.K. Kaushik, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the buses used of the appellant are having contract carriage permits. As per the definition of 'Tour Operato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 128 of the Motor Vehicles Rules. Therefore, this ruling will not help the petitioners to suggest that a vehicle covered under Section 72(2)(xvii) merely for that reason or merely because it is having permit under Section 88(8) of the Motor Vehicles Act for its occasional use can never become a tourist vehicle. A plain reading of the provisions of the Motor Vehicles Act says that any such vehicle which answers the description of the tourist vehicle under Rule 128 and which would run under a contract would become a tourist vehicle and once it becomes a tourist vehicle so long as it is being used under any permit under the Motor Vehicles Act, by a person who is engaged in the business of operating the tours then, the requirement of the Finance Act would be complete." Therefore the contention of Ld AR is rejected. 4.6 Revenue has also tried to rely on the judgment in the case of Sri Pandyan Travels Vs. Commissioner of C.Ex. Chennai-II 2006 (3) STR 151 (Mad.) to their favour. However, on going through the said judgment we find that it only supports the views expressed in paras above. The judgment refers to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is contemplated under Section 2(43) of the Motor Vehicles Act while defining the "tourist vehicle" is that it should be a "contract carriage" and should have been constructed or adapted and equipped or maintained in accordance with the specifications prescribed. We have already pointed out that those specifications are provided in Rule 128 of the Motor Vehicles Rules in case of vehicles other than motor cabs. Therefore, even if the Motor Vehicles Act and the Rules framed thereunder contemplate the tourist permit, it is not necessary that every tourist vehicle must have a "tourist permit". Again, it is to be seen that we would be bound by the language of Section 65(50) to (52) alone in interpreting those provisions. Merely because the Motor Vehicles Act provides for "tourist permit", it would not mean that Section 65(52) of the Finance Act also contemplates only a "tourist permit". We cannot do violence to the language of the provisions by holding that a " tourist vehicle" contemplated under the Finance Act must be a vehicle having only "tourist permit." (ii) In the case of Mharashtra State Road Transport Corpn. Ltd. (supra) are held that: "8. We have given consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It will be important to see how the 'tourist vehicle' is defined under the Motor Vehicles Act, 1988. Section 2(43) of the Motor Vehicles Act defines a tourist vehicle as follows :- " 'Tourist vehicle means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf." Further, the specification for the tourist vehicle is prescribed under Rule 128 of the Central Motor Vehicles Rules. Thus to charge Service Tax, the vehicle used for operating tours must meet the said specifications. 11. Since the definition of 'tourist vehicle' contains a further term i.e. 'contract carriage', it will be important to understand the definition of 'contract carriage'. 'Contract carriage' has been defined under Section 2(7) of the Motor Vehicles Act as under :- " "Contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
