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TMI Blog2017 (11) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... , none of the conditions stipulated in the Circular are satisfied insofar as the petitioner is concerned, and therefore, the question of applicability of service tax to the petitioner's vehicle does not arise. While so, the respondent issued a notice, calling upon the petitioner to register himself with the respondent as a tour operator within the meaning of Section 65 (52) of the Finance Act, 1994. This notice, dated 21.11.2003 was challenged by the petitioner and one other person by name C.Mahendran, in W.P.Nos.1358 and 1359 of 2004, which were disposed of, by order, dated 30.01.2004, issuing certain directions, after which, the petitioner submitted detailed explanation, and the respondent has passed the impugned order, dated 15.04.2004 directing the petitioner to register himself with the Department as a Tourist Operator and pay service tax. 4. The petitioner's contention is that, the impugned order has been passed in gross violation of the direction issued by the Court, in W.P.Nos.1358 and 1359 of 2004. The respondent failed to see that the petitioner is holding only a contract carriage permit within the meaning of Section 2(7) of the Motor Vehicles Act, 1988 and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me within the purview of the Finance Act, 1994, imposing the service tax, vide Section 66 read with Section 65 (38) and (52), and the notices are without jurisdiction. The aforementioned three categories of cases were separately dealt with. The order, with regard to Contract Carriage Operators is from para No. 39 to para No. 44, and it would be beneficial to refer to the said paragraphs, which are quoted herein below:- "39.We are now concerned with the second category of petitioners, viz. Petitioners who are contract carriage operators , owning the vehicles covered under Sec. 74 of the Motor Vehicles Act, 1988. 40.The only contention raised by Mr.Gopalan is akin to what she had raised in respect of the State Carriage Operators , i.e. The permit granted under Sec. 74 of the Motor Vehicles Act for contract carriage operators would not attract the provisions of Sec. 65(52) of the Finance Act unless it is a tourist permit . 41.We have already rejected that argument holding that a permit contemplated under Sec. 65(52) of the Finance Act need not necessarily be a tourist permit . We have also clarified therein that the only condition is that the vehicle should be a tourist vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts would be, in any manner, different from the holders of the stage carriage permits and the owners of the spare buses thereunder, and that, the same rationale would apply even to the contract carriage vehicles covered by the permit under Section 74 of the Motor Vehicles Act. It was further pointed out that, some of the petitioners, in the batch of cases, are having permits under Section 88 (9) read with Section 82 of the Motor Vehicles Act, which are nothing but tourist permits, issued for the purposes of promoting Tourism, and obviously, issued to the Tourist Vehicles as contemplated under the said Section. Therefore, it was observed that, 'there will be no question of entertaining their objections and they will straightaway be covered under Section 65 (52) of the Finance Act. 9. Further, it was pointed out that by the Hon'ble Division Bench that, under Section 74 of the Motor Vehicles Act, for contract carriage permits, which are issued would not save the petitioners, because, what is required is not a ''tourist permit'', but a ''user of a tourist vehicle'', by the tour operator, and such tourist vehicles should have been covered under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities, and the Authorities will decide, whether the petitioners vehicles are ''Tourists Vehicle'', as contemplated under Section 2 (43) of the Motor Vehicles Act, and if they are not falling under the category of tourist vehicles, provisions of the Finance Act would not apply, more particularly, the provisions of the Section 65 (51) and the other allied Sections, like Sections 66 (3) etc. 12. Thus, in terms of the observations made by the Hon'ble Division Bench, in the above referred case, if objection is raised by a contract carriage permit holder, stating that, he is not undertaking any tour, in respect of tourist vehicle contemplated under Section 2 (43) of the Motor Vehicles Act read with Rule 85 (A) (7) and 128 of the Central Motor Vehicle Rules, then, the concerned Assessing Authority is bound to consider the same, as a rider, has been provided in the decision of the Hon'ble Division Bench (referred supra). Though this rider, as contained in para No.36, which is under the Chapter dealing with Stage Carriage Operators, still, while dealing with the Contract Carriage Operators, the Hon'ble Division Bench has pointed out that the rider would equa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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