TMI Blog2016 (11) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... mited for the period 2002-03 and 2003-04 which comes to ₹ 1,12,046/-. On this issue though the appellant have made a categorical submission and the same was recorded by the Ld. Commissioner, but no finding was given, therefore this issue also needs reconsideration - the impugned order set aside and the matter remanded to the Commissioner (Appeals) for reconsideration of the entire matter taking into consideration our above observations - appeal allowed - matter remanded. - ST/198/2009 - A/87976/16/STB - Dated:- 6-4-2016 - Shri Ramesh Nair, Member (Judicial) and Shri C.J. Mathew, Member (Technical) Shri Sagar A. Kulkarni, Advocate for Appellant Shri V.K. Kaushik, Asstt. Commr. (A.R) for respondent ORDER This appeal is directed against Order-in-Appeal No. PIII/VM/88/09 dated 13/07.2009 passed by Commissioner (Appeals) Central Excise, Pune-III whereby Ld. Commissioner (Appeals) upholding the Order-in-Original No. STC/PIII/13/ADC/2008 dt. 14.11.2008, rejected the appeal filed by the appellant. 2. The fact of the case is that the appellants are engaged in providing service falling under the category of Tour Operator and Business Auxiliary Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Tribunal has passed various decisions on the identical issue wherein this Tribunal has conclusively and consistently held that even though the permit is of a contract carriage but the buses should conform the standards and specifications as prescribed under Rule 128 of Central Motor Vehicle Rules, 1989. Whereas there is no finding on this aspect, therefore both the lower authorities have wrongly held that the service of the appellant is covered under Tour Operator service. In this regard he placed reliance on the following decisions: (i) Jai Somnath Transport Another Vs. Commissioner of Service Tax Mumbai-II 2015-TIOL-2445-CESTAT-MUM (ii) Commissioner of Service Tax, Ahmedabad Vs. Patel Tours Travels 2010 (20) S.T.R. 698 (Tri.-Ahmd.) (iii) Maharashtra State Road Transport Corpn. Ltd. Vs. C.C.E., Nashik 2014 (36) S.T.R. 161 (Tri.-Mumbai) The Ld. Commissioner heavily relied upon the judgment of Hon ble High Court of Madras in the case of Sri Pandyan Travels Vs. Commissioner of C. Ex. Chennai-II 2006 (3) S.T.R.151 (Mad.). In this regard, he submits that though the Hon ble High Court has decided that even the contract carriage vehicle is also co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreted the judgement in Secy. Federn. Of Bus-Operators Assn. of T.N. to mean that all contract carriages will be covered under the definition of tourist vehicles. This is clearly a fallacious reading of the judgement. We see on reading the whole judgement that the underlying view being expressed throughout is that for a vehicle to be called a Tourist Vehicle, it should be a Contract carriage constructed or adapted and equipped in accordance with the such specifications prescribed under Rule 128 of the Motor Vehicle Rules. It was held that However, it must be remembered that in the present case, we are not concerned with the two kind of permits. The question posed before us is whether a vehicle covered under Section 72(2)(xvii) of the Motor Vehicles Act can be viewed as a tourist vehicle. The question is not as to whether a permit under Section 88(8) would ipso facto become a permit covering a contract carriage. It has to be borne in mind that a tourist vehicle as defined under Section 2(43) of the Motor Vehicles Act which definition has been picked up as it is by the Finance Act, means a contract carriage constructed or adapted and equipped or maintained in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Motor Vehicles Act, 1988 or the rules made thereunder . Thus the intention to include all contract carriages in the definition was given effect from this date only. 4.7 Revenue, it appears, is confusing the words Tourist permit and Tourist vehicle and reading the word permit to mean the same as Tourist permit. Here too the judgement in Secy. Federn. Of Bus Operators Association of T.N.(supra) clarifies the matter beyond doubt. It was held therein that 29. It, therefore, cannot be said that the permit contemplated under Section 65(52) of the Finance Act is a tourist permit alone contemplated under the Motor Vehicles Act or the rules framed thereunder. The argument is obviously based on the faulty logic that in Section 65(51) and (52) of the Finance Act the term tourist vehicle is used and the Motor Vehicles Act provides for the tourist permit under Section 88(9) read with Rules 82 to 85 or under 1993 Rules only for tourist vehicles and therefore, any tourist vehicle must have a tourist permit . The logic is obviously incorrect because even under the Motor Vehicles Act a tourist vehicle does not necessarily need a tourist permit . All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f distance between such places. The definition of tour operator as was existing before 10-9-2004 included any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act or the Rules made thereunder. From 10-9-2004, the said definition underwent a change and the new definition has two parts. The second part of the definition is what was being covered prior to 10-9-2004. The first part of the definition which has been added from 10-9-2004 defines as tour operator means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services by any mode of transport). The assessee is not engaged in the business of planning, scheduling, organizing or arranging tours and, therefore, the first part of the definition would not cover them. As far as the second part of the definition is concerned, it is only to place that the person is engaged in the business of operating tours in a tourist vehicle covered by a permit granted by the Motor Vehicles Act or the Rules made thereunder. The same definition was existing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Rules. There are certain broad specifications provided in general for motor vehicles. However, for tourist vehicle, the specifications provided relate to more comfort etc. It is important to note that a vehicle meeting the tourist vehicle specifications can also be used for stage carriage operation. Similarly, vehicles meeting the tourist vehicle specifications can also be used for contract carriage operation. Keeping in view the nature, tours would normally be conducted in a contract carriage and not in the stage carriage operation. In view of the findings in the above judgments, it is clear that in order to classify the service under Tour Operator , tt is necessary that the vehicle should be tourist vehicle in terms of Section 2(43) of the Motor Vehicle Act, 1988 read with Rule 128 of the Central Motor Vehicles Rule 1989. From the orders of both the lower authority, it is observed that they have not verified and given any finding on this vital aspect, therefore the matter needs to be reconsidered by the appellate authority. On the issue of quantification of demand on the ground raised by the appellant that they have not provided the tour operator service during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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