TMI Blog2023 (8) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the notification. The appellant has not been able to discharge the onus on him prove his case that they are eligible for exemption under the said notification. Despite clear directions of this Tribunal to the adjudicating authority to determine the eligibility of the appellant for the benefit of the said notification, keeping in view the fact that the vehicles involved were tourist vehicles and not stage carriages, he has failed to produce the relevant documents to support his contention that he did not fall within the exclusion condition of the Notification. Time limitation - appellant has pleaded there was confusion in regard to the definition of Tour Operator - penalty - HELD THAT:- It is apparent that definition of tour operator has been amended from time to time since it was brought into the service tax net. Therefore, it has to be acknowledged that there may have been confusion to the scope of this service, and the benefit should go the taxpayer - the demand upheld for the normal time period, and the demand for the extended period set aside. The penalty is also modified accordingly. Appeal allowed in part. - MR. DILIP GUPTA, PRESIDENT AND MS. HEMAMB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the demand of service tax under the category of Tour Operator Service on income appearing under that head, holding that the services were rendered towards tourism/conducted tour, charter or hire service for buses holding tourist vehicle permit which had been issued by the Secretary, State Transport, M.P. The Commissioner confirmed demand on the receipts of sale of tickets from outstation offices of Appellant appearing under the head Ticket Booking Other Stations and on receipts from sale of tickets from Head office of appellant under the heading Head office cash booking for the year 2006-07. In respect of Financial Year, 2007-08, he confirmed the demands on receipts appearing under the heading Head office Cash . 5. The learned Counsel for the Appellant stated at the outset that without going into the merits of the demand, the reasoning given by the Commissioner for confirming demand is erroneous and illegal and the impugned order is beyond scope of show cause notice. He stated that the allegation in show cause notice was that since the bus permit issued to the Appellant are of Contract Carriage/ Tourist, hence the Appellant is liable to service tax, whereas the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that one of the basic contentions by the appellant in the grounds given in the appeal memorandum is that the impugned Order is beyond the scope of show cause notice. He submitted that the Tribunal vide its earlier order dated 30.04.2015 had categorically upheld the allegation of the department in the show cause notice that impugned service rendered by the appellant using a contract carriage would fall under the category of tour operator service. To that extent, the show cause notice had gotten merged with the said order of the Tribunal. Therefore, the argument that the impugned order has become infructuous as it has traversed beyond the scope of show cause notice, is not legally tenable and liable to be rejected. 10. He added that the onus of proof is on the appellant to prove its case that they are is covered by the exemption notification. He drew attention to paragraph 21.11 of the impugned order wherein the Adjudicating Authority had categorically held that as the appellant had not submitted any documents and in view of the material on record, the appellant is not eligible for the benefit of the said notification. The appellant in the appeal memorandum has also not submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or de novo adjudication on the limited aspect of eligibility of the appellant for the benefit of exemption under Not. No. 20/2009-ST, dated 07.07.2009 as made applicable with effect from 01.04.2000 invokability of the extended period and imposability of mandatory penalty under Section 78ibid. We make it clear that the adjudicating authority shall determine the eligibility of the appellant for the benefit of the said Notification keeping in view the fact that the vehicles involved were tourist vehicles and not stage carriages. The demand and penalties will be recomputed based on the adjudicating authority's finding regarding eligibility (or otherwise) of the appellant for the benefit of Not. No. 20/2009-ST and invokability of the extended period and the provisions of Section 78ibid. 21.7 I have gone through the submission made by the notice at the time of personal hearing on 20.10.2015 and further submission dated 9.6.16. with reference to letter C.No.ST/46/ADJ-1/2008/3098-99 dated 19.5.16 followed by reminder letter even no 3426-25 dated 24.5.16 requesting Noticee to submit the segregated details of all the amount received by them separately for the passenger ticket booking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transport Authority, M.P. Gwalior. On perusal of above 25 tourist permit issued by the Secretary, State Transport Authority, Madhya Pradesh, Gwalior. I observe that the permit contains the details of tourist passenger places where the tourist passenger will travel and the tour program would be conducted as per the dates mentioned in the permit. On perusal of copies of various contract available on record I find that the Noticee is engaged in providing services of tour operator by way of providing their buses for marriage parties, picnic parties. 21.9 I also find that the Noticee have not disputed that the vehicles operated by them were tourist vehicle and holding tourist permit. As per records available the vehicles under reference were also having special contract carriage permit to operate tour for a set of passengers as per list on route approved by the State Transport Authority. In view of documents available on record I hold that the activity of the Noticee is an activity liable to Service Tax under tour operator Services and not against stage carriers as claimed by the Noticee. 21.10 The Noticee for the services provided in capacity of Tour operator has accounted recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/2009-Service Tax dated 7.7.2009. I also observe that on perusal of tourist permit available on record along with list of passengers enclosed for the purpose of excursion tour to be submitted to the State Transport Authority, and conclude that the Noticee is engaged in providing services in the capacity of TOUR OPERATOR and no service has been provided by the Noticee in capacity of stage carrier and I hold accordingly. I also find that the Noticee is not entitle for exemption of Rs 10 lacs as claimed by them. The remaining amount found eligible for exemption granted under Notification No. 20/2009-ST dated 7.7.2009 and Section 72 Finance Act, under Tour Operator service to tour operators for transport of passengers. 13. From the above paragraphs, it is abundantly clear that owing to the retrospective amendment of the notification, the Commissioner had to specifically examine the issue afresh by asking the appellant to establish their eligibility to the benefit of the notification no. 20/2009-Service Tax dated 7th July, 2009 only. The issue as to whether the service provided by the appellant is classifiable under Tour Operator service is not open for decision, in the remand orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent explanation was provided by the appellant to clarify the block booking of tickets for officials of Laxmivilas Bank Ltd during the period under consideration. Similarly, there are other block booking of tickets to Indore to Surat, Aurangabad, Nasik, Pune etc. The appellant has not been able to establish that these bookings involved only interstate or intrastate transportation of passengers, and it did not include tourism. 17. We note that the Commissioner has observed that the 25 tourist permits issued by the Secretary, State Transport Authority contain the details of tourist passenger places where passengers will travel and the tour programme would be conducted as per the dates mentioned in the permit. He has also examined the copies of contracts which were available on record wherein it is established that the appellant was providing the services of tour operator by providing their buses for marriage, parties, picnic parties etc. From the records available, the Commissioner has held that there are no documents available in the record and nor had the appellant submitted any documents which shows that they are eligible for the exemption in terms of the notification. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction.... 15. This was also the view expressed in The Commissioners of Inland Revenue v. James Forrest [(1890) 15 A.C. 334] where Lord Halsbury, L.C. observed : all exemptions from taxation to some extent increase the burden on other members of the community .... and in Littman v. Barron (Inspector of Taxes) (1951 (2) A.E.R. 393), a decision of the Court of Appeal where Cohen, L.J. said : the principle that in case of ambiguity a taxing statute should be construed in favour of a taxpayer does not apply to a provision giving a taxpayer relief in certain cases from a section clearly imposing liability . 18. We hold that the appellant has not been able to discharge the onus on him prove his case that they are eligible for exemption under the said notification. Despite clear directions of this Tribunal to the adjudicating authority to determine the eligibility of the appellant for the benefit of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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