TMI Blog2017 (11) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... r Petitioner : Mr.M.Palani For Respondent : M/s.Hema Murali Krishnan, ORDER Heard Mr. M. Palani, the learned counsel appearing for the petitioner and M/s.Hema Murali Krishnan, the learned Standing Counsel for the respondent. 2. The petitioner is a contract carriage operator in Karaikal, and he was issued a contract carriage permit, by way of transfer from one D.P. Karumbal on 17.08.2000. The petitioner has been operating his vehicle, bearing Registration No.PY02/B 7677, as a contract carriage in the Union Territory of Pondicherry. During 1994, service tax was levied on various services, and the Act was amended during 1996, enlarging the scope, and in 1997, tour operators were also brought into the Service Tax NET. In this regard, the Central Excise Commissionerate issued a Circular No.19, which provides for the tour operators to register themselves under the Act for payment of Service Tax. 3. The petitioner's case is that, 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reliance placed on para No.36 of the decision of the Hon'ble Division Bench, in the Secretary Federation of Bus Operators' case (supra) is incorrect, as the decision is clearly in favour of the Revenue and against the Petitioner/Assessee and the petitioner has to necessarily register himself with the respondent under the provisions of the Finance Act. 7. In The Secretary Federation of Bus Operators' case (supra), three categories of Writ Petitions were heard, viz., (i) Petitioners, who were Stage Carriage Operators, owning a spare bus, covered by spare bus permit. (ii) Petitioners, who were Contract Carriage Operators and (iii) Petitioners, who were the owners of Maxi-cabs or Taxi. The challenge in the batch of cases was to the notices issued by the Officers of the Central Excise Department, treating the noticees as Tour Operators, and requesting them to register themselves under the Finance Act. The petitioners contended that, they come 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 deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a user of a tourist vehicle by the tour operator in his business and further such tourist vehicle should have been covered under a permit granted under the Motor Vehicles Act and/or the rules framed thereunder. There would be, therefore, no question of treating the holders of the permits under Sec.74 of the Act for the contract carriage in any different manner. 43.No other point was argued before us in respect of contract carriage operators . 44.We would have ordinarily disposed of these petitions here with the rider as mentioned in paragraph 36 supra. However, the challenge of legislative competence was raised in the connected category of rent-a-cab scheme operators , which can be made applicable to the present situation. Therefore, we would pass the final orders only after considering those challenges . 8. In the aforesaid decision, the Hon'ble Division Bench pointed out that, they do not see as to how the cases of holders of contract carriage permits 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and the authorities will decide as to whether the petitioners' vehicles are the tourist vehicles as contemplated under Sec. 2(43) of the Motor Vehicles Act, which is sine qua non for the application of the Finance Act. Needless to mention that if they are not the tourist vehicles , the provisions of the Finance Act would not apply and more particularly the provisions of Sec.65(51) and the other allied sections like Sec.66(3), etc., . 11. On a reading of the above paragraph, I am of the clear view that the interpretation sought to be given to the observations of the Court does not, in any manner, advance the case of the petitioner. In the said paragraph, the rider is based on the contention, which was placed by the learned Senior Standing Counsel for the Department, wherein, he stated that, if objections are raised before the concerned Authority, their objections would be decided, and the petitioners therein are permitted to raise their objections before the concerned Authorities, 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, while passing the impugned order, and to ascertain this factual position, the matter has to be remanded to the respondent for fresh consideration. 15. Accordingly, this Writ Petition is allowed, and the impugned order is set aside and the matter is remanded to the respondent for fresh consideration. The respondent is directed to consider the petitioner's representation, dated 16.02.2004, and specifically decide the issue, even though the petitioner has been issued a permit under Section 74 of the Motor Vehicles Act for contract carriage; and whether or not, it is a tourist vehicle within the meaning of Section 2 (43) of the Motor Vehicles Act read with Rule 128 of the Central Motor Vehicle Rules, which has been held to be sine qua non for the application of the Finance Act. 16. The respondent shall take note of the observations of the Hon'ble Division Bench in para No.36 of the decision in the case of (The Secretary, Federation Bus Operators Association vs. Union of India) reported in (2002) 5 C.T.C. 547, wherein, it has been held that, if they are not tourist vehicle operators, the provisions of Finance Act would not apply. The respondent is directed to afford a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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