TMI Blog2018 (11) TMI 1756X X X X Extracts X X X X X X X X Extracts X X X X ..... r other similar services by any mode of transport. The amended definition after 16.05.2008 of the tour operator also have the above ingredients that a person to be categorised or classified under the tour operator service. The activity undertaken by the appellant is more of a nature of providing transport facility between two fixed places. The definition of tour operator in our view, entertains not only a mere transportation of passengers /tourists but also involves a detailed planning of travel, sightseeing and other requirements for a tour. It needs planning and then detailed arrangements are to be made for transport, stay, sight seeing etc., such an activity will certainly classifiable as the tour operator but in the present case, appellants basically provides mere transportation facility which is open to pilgrims / tourists persons even villagers to go uphills and therefore, in our view, same cannot be classified and charged to service tax under the category of tour operator service. Though the definition of tour operator has got a change since 10.09.2004, however, we feel that after the amendment to the definition of tour operator, it has been made a very elaborate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment have been of the view that the journey from base point of either of two destination to the temple destination of Maa Mansa Devi and Maa Chandi Devi clearly comes under the definition of Tour Operator service and, therefore, they are required to deposit the Service Tax on the amount charged by them from the customers for providing the tour in Udan Khatola. In view of the amended definition of tour operators from 10.9.2004, the appellant was required to pay Service Tax not only on the values so realised by the them for providing transportation through maxi cabs/ mini bus between Maa Mansa Devi and Maa Chandi Devi but also on the amount charged by them from their customers in the tour tickets for providing journeys by ropeway trolleys to Maa Mansa Devi as well as to Maa Chandi Devi and, therefore, several show cuase notices covering the period from September, 2004 to March, 2014 came to be issued demanding total Service Tax of ₹ 17,77,01,766/- from the appellant under section 73 of the Finance Act, 1994. Interest under section 75 has also been invoked, the Penal provisions of section 76, 77 and 78 have also been invoked in this case. The matter has been adjudicated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority is legally not sustainable. 7. Appellant submits that the definition of tour operator was expanded with effect from 10.9.2004. The Central Board of Excise and Customs issued Circular No. 80/10/2004-ST, dated 17.9.2004 incorporating clarifications on the charges made in the budget and explaining the scope of the levy under tour operator service. In this Circular, it was clarified that : 20. Extension of tour operator service to package tour operators using different modes of transport: At present, tour operator service covers package tour operators also. However, under the present definition, such package tours attract service tax only if such tours involve modes of transport other than road ( say a combination of air-rail-cab travel). The definition of tour operator has been suitably expanded. While the existing levy on our operators engaged in operating tours in tourist vehicles remains as such in case of a package tour (which are planned, scheduled, organized or arranged by tour operators), the scope of the levy is being extended by removing the limitation regarding transportation by tourist vehicles only. Such tourist operators would be subjected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and it is not involved in planning, scheduling, organising or arranging tours and this transport facility can be used by any person visiting the temples of Maa Mansa Devi and Maa Chandi Devi. 11. Furthermore, movement of trolleys simpliciter with the aid of power from one fixed point to another fixed point cannot be held to be a mode of transport. Reliance is placed on the judgement of the Tribunal in Shail Shikhar Associates (supra). 12. It is also submitted that Appellant is not a tour operator as defined in Section 65(105) (115) and the demand is liable to be set aside. 13. It has further been contended by the learned advocate for the Appellant that Show cause notice dated 02.01.2008 demands the Service Tax by invoking the extended time period for the period between April, 2006 to September, 2006 under the Show cause notice dated 02.01.2008, however, since two Show cause notices had already been issued for the normal period before this and therefore, demand for the period between April, 2006 to September, 2006 is clearly barred by limitation, and therefore, legally not sustainable. Learned advocate placed reliance in this matter on Hon ble Supreme Court s decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the definition given in the Finance Act, 1994 for the tour operator . Before we legally analyse the definition qua the facts of the matter, it will be appropriate to have a look at the definition of tour, tour operator and tourists vehicles: Section 65. Definitions In this Chapter, unless the context otherwise requires: (105) taxable service means any [service provided or to be provided], - (n) to any person, by a tour operator in relation to a tour; (113) tour means a journey from one place to another irrespective of the distance between such places; (114) tourist vehicle has the meaning assigned to it in clause (43) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988); Prior to 10.09.2004 (115) tour operator means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder . From 10.09.2004 to 15.05.2008 (115) 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 servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew, entertains not only a mere transportation of passengers /tourists but also involves a detailed planning of travel, sightseeing and other requirements for a tour. It needs planning and then detailed arrangements are to be made for transport, stay, sight seeing etc., such an activity will certainly classifiable as the tour operator but in the present case, appellants basically provides mere transportation facility which is open to pilgrims / tourists persons even villagers to go uphills and therefore, in our view, same cannot be classified and charged to service tax under the category of tour operator service. While holding the above view, we also take shelter of this Tribunal s decision in appellants own case reported as [2006 (4) STR 88 (Tri-Del)]. Relevant paragraphs are extracted as under: 2. The appellant in the present case, operates several ropeways from Hardwar to both Mansa Devi and Chandi Devi temples. The boarding points for the two ropeways are located at a distance of about 4 kms. The pilgrims visit the temples by using ropeways. Appellant sells ropeway tickets for single journey to one temple or a combined ticket for journey to both the temples. A combined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur. 8. In the view we have taken above, in the present case, there is no tour in a tourist vehicle as contemplated in the statute so as to attract levy. Therefore the duty demand made under the impugned order is not sustainable. Penalty cannot find place when tax demand is not sustainable. 9. In the result, the impugned order is set aside and the appeals are allowed with consequential relief to the appellants. 19. Though the definition of tour operator has got a change since 10.09.2004, however, we feel that after the amendment to the definition of tour operator, it has been made a very elaborate and specific and that for an activity to be classified as Tour operator service, the elements of detailed planning, scheduling, organising the tour which may include arrangement for accommodation, sight seeing or other similar services including the arrangements of the mode of transport need to be present. Since all these elements are absent in the present case, we feel that the appellant is not liable to pay service tax under the category of tour operator service. In view of the above, we feel that impugned Order-in-Original is devoid of any merit. We set aside the same and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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