Custom, Excise & Service Tax Tribunal
M/S Andhra Pradesh State Road Transport ... vs The Commissioner on 29 June, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench Division Bench Court I Appeal No.ST/284/2007, ST/312/2007,ST/366/2008 & ST/379 /2009 (Arising out of Order-in-Original No.01/2007, Dated 21-03-2007,13/2009-ST dated 11-02-2009 & 01/2008-Adjn(Service Tax) dated 17-03-2008 passed by Commissioner of C.CE&ST, Hyderabad-II) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Honble Mr. Madhu Mohan Damodhar, Member(Technical) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s Andhra Pradesh State Road Transport Corporation (APSRTC) ..Appellant(s) Vs. The Commissioner. C.C.E&ST, Hyderabad-II ..Respondent(s)
& The Commissioner.
C.C.E&ST, Hyderabad-II ..Appellant(s) Vs. M/s Andhra Pradesh State Road Transport Corporation (APSRTC ..Respondent(s) & M/s Andhra Pradesh State Road Transport Corporation (APSRTC) ..Appellant(s) Vs The Commissioner.
C.C.E&ST, Hyderabad-II ..Respondent(s) & The Commissioner.
C.C.E&ST, Hyderabad-II ..Appellant(s) Vs. M/s Andhra Pradesh State Road Transport Corporation (APSRTC ..Respondent(s) Appearance Shri G.Natarajan, Advocate for the Appellant Shri Anish Gupta, AR for the Respondent Coram:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Honble Mr. Madhu Mohan Damodhar, Member(Technical) Date of Hearing : 29/06/2016 Date of decision: 29/06/2016 FINAL ORDER No._______________________ [Order per: Madhu Mohan Damodhar,] 1.1 The issue involved in these appeals being the same, they were heard together and are disposed by this common order. The assessee and department are referred to as their status before the original authority for the sake of convenience.
1.2 APSRTC obtained temporary contract carriage permits and special permits as per requirement from the Transport authorities. In the case of Chartered contract services such as regular pickup and dropping services provided to industries, institutions, public sector undertakings etc. no contract carriage permit is obtained though the services are purely on contract and buses are operated on the strength of stage carriage permits.
1.3 It appeared to department that various chartered/contract/tour services provided by APSRTC to the public fall under the tour operator services as defined under the clause (115) of Sec.65 of the Finance Act, 1994 and that APSRTC were providing various tour operator services and evading payment of Service Tax.
2. Show cause notices dated 07-02-2006, 02-04-2007, 15-10-2008, were issued to appellant/assessee proposing recovery of service tax on the amounts received by them on aforesaid activities respectively for different periods, which were confirmed by respective adjudicating authorities. Hence appeals Nos.284/2007, 366/2008, and 379/2009 by assessee. Department has also come in appeal by filing appeal No.312/2007 against dropping of demand by adjudicating authority for the period 4/2000 to 9/2004. The summary of the details of the Show cause notice, demand of service tax and period involved in the appeals are given in the following table.
S.No. Appeal No. SCN Period OIO Demand Confirmed penalties
1. ST/284/2007 8/2006 dt. 7.2.06 10.09.04 to 3/2005 (demand from 4/2000 to 9.9.04 dropped) 1/2007 dt. 21.3.07 4,01,10,786 Rs.1000 per day u/s 76, Rs.2000 u/s 77, Rs.4,01,10,786 u/s 78
2. ST/312/2007 (Departmental appeal) 4/2000 to 9.9.04 6,32,95,694
3.
ST/366/2008 OR No.17/ 2007 dt. 2.4.07 2005-06 1/2008 dt. 17.3.08 3,76,61,970 Rs.1000 per day u/s 76, Rs.1000 u/s 77, Rs.3,76,61,970 u/s 78 IV/16/202/2007 dt.15.10.07 2006-07 5,61,58,221 Rs.200 per day u/s 76, Rs.1000 u/s 77, Rs.5,61,58,221 u/s 78 4. ST/379/2009 OR No.77/ 2008 dt. 22.10.08 2007-08 13/2009 dt. 11.02.09 68,00,101 2% pm u/s 76, Rs.1000 u/s 77, Rs.68,00,101/- u/s 78
3. The main contentions put forth by the assessee in the grounds of appeal are as follows:-
3.1 At present, tour operator service covers package tour operators also. However, under the present definition, such package tours attracts 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 tour operators engaged in operating tours in tourist vehicles remains as such, in case of 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 service tax irrespective of the mode of transport used during such tours. The abatements (Notification No.39/97-ST) in case of package tour operators (providing transportation and accommodation) would remain at 60%. 3.2 Appellants submit that the amended definition is applicable only to tour operators engaged in the business of conducting package tours. However, the requirement of levy on tour operators engaged in operating tours in tourist vehicle remains as such. In the said circumstances, when the Appellants are not engaged in the business of operating tours and the services are provided by them by obtaining stage carriage permits, special permits from RTA, and the vehicles used by them are not confirming to the requirements of a tourist vehicle: the learned Commissioners order holding that ht 3eappellants are providing taxable services as tour operators has no substance. In support of the above submissions, appellants rely on the following decisions of the Honble Tribunal.
1) CCE & C, Vadodara-II, Vs Gandhi travels 2007(79) RLT 774(CESTAT-Ahmd).
2) Praseetha Suresh vs CCE Thiruvananthapuram, 2006(3) STR 777(Tri.Bang) 3.3 The learned Commissioner has erred in demanding service tax w.e.f 10-09-2004 under a wrong impression that with effect from 10-09-2004 the requirement of the use of tourist vehicles by tour operators has been dispensed with and that the judgment of the Honble Madras High court in the case of Secretary, Federation of Bus Operators Association or Tamil Nadu Vs Union of India, wherein it was categorically held that in order ot levy service tax on stage carriage operators /contract carriage operators, the vehicles used must be tourist vehicles as contemplated under section 2(43) of the M.V.Act read with Rule 128 of M V Rules , would not come in the way to levy service tax on tour operators who are not using tourist vehicles for the purpose of tour. However, as already stated above, the circular dated 17-09-2004 is very clear to the effect that the amendment made in the definition of tour operator in the budget 2004, was with reference to extending the scope of package tour operators and not with reference to the normal tour operators where the condition of use of tourist vehicle would continue to be operative In view of the above, the Order-in-Original passed by the Learned Commissioner demanding service tax form the Appellants with effect from 10-09-2004 is devoid of merits.
4. In addition, the learned Counsel Mr. G. Natarajan appearing for the assessee contended that assessee has not obtained any tourist permit under Section 74 or Section 88(9) of Motor Vehicles Act ,1988 and hence they are not covered under the definition of tour operator of Section 65(115) of Finance Act,1994, during the entire period of dispute, even after the said definition was amended, w.e.f. 10-09-2004 and later w.e.f. 16-05-2008. He further contended that the three types of activities undertaken by the assessee do not fall within the ambit of eligibility to service tax as follows:-
(i) casual contract basis: Supply of buses to private parties on hire basis for the purpose of pilgrimage, marriages, leisure travel, meetings, excursions, etc. the vehicles having stage carriage permits are used for this purpose, by obtaining temporary contract carriage permits, under Section 88(8) of the Motor Vehicles Act, 1988.
(ii) Inter-state casual contract: Same as (i) above but involves inter-state destinations. For the above two activities, the mandatory 10% of spare busies to be kept by APSRTC alone are used.
(iii) Chartered Contract Services: Plying buses exclusively for the employees of certain companies/industries etc. The buses which are having Stage carriage Permits only are used for this purpose. These buses are regularly plying as State carriers and for one trip, they are used exclusively for the customers employees. On their return trip they are once again used as normal stage carriage buses.
5. On behalf of department the Ld. Ar. Mr. Anish Gupta vigorously opposed the appeals of the assessee. He pointed out that their website offers various chartered contract services. He placed reliance on the judgment of the Honble High Court of Madras in the case of Secy. Fed. of Bus Operators Assn. of Tamil Nadu V UOI 2001 (134) ELT 618 (Mad) (hereafter referred to as SFBAT case) to urge that the activities carried out by the appellants would fall under Tour operator service and hence the entire demands proposed in the Show cause notice are legal and proper. He further stated that the definition of Tour operator refers to any person engaged in the business of planning , scheduling, organizing or arranging Tours by any mode of transport which is precisely the activity undertaken by the appellant. In regard to the appeal filed by department the learned AR submitted that Commissioner has erred in dropping the demand prior to 10-09-2004 without verifying whether the vehicles indeed do not conform to Rule 128 of the motor Vehicle Rules. He finally urged that the transportations having been done under a contract whether explicit or implicit, the activity would attract service tax being contract carriages and thus falling within the definition of Tour operator.
6. We have heard both sides at length and also perused the records carefully. Before we proceed to analyse the issue under consideration, the relevant provisions of the Finance Act, 1994 are extracted as under for better appreciation of the issue.
From 01-04-2000 to 09-09-2004:
Term defined Reference to the Finance Act, 1994 Definition Tour Section 65(50) tourmeans a journey from one place ot another irrespective of the distance between such places.
Tourist vehicle Section 65(51) Tourist vehicle has the meaning assigned to in clause 43 of section 2 of the Motor Vehicles Act, 1988.
Tour Operator Section 65(52) Tour operator means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the rules made under the Motor vehicles ct, 1988 or the rules made thereunder.
From 10-09-2004 :
Term defined Reference to the Finance Act, 1994 Definition Tour Operator Section 65(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 services) by any mode of transport and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the rules made under the Motor Vehicles Act, 1988 or the rules made thereunder.
From 16-05-2008 :
Term defined Reference to the Finance Act, 1994 Definition Tour Operator Section 65(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 services) by any mode of transport and includes any person engaged in the business of operating tours in a tourist vehicle or a contract carriage by whatever name called, covered by a permit other than stage carriage permit, granted under the Motor Vehicles Act, 1988 or the rules made thereunder.
So also, certain provisions of the Motor Vehicles Act, 1988 and the Rules made thereunder are extracted as below, in order to appreciate the issue in its proper perspective.
Term defined Reference to the Finance Act, 1994 Definition Tourist vehicle Section 2(43) of the M.V.Act, 1988 Tourist vehicle means a contract carriage constructed or adapted and equipped or maintained in accordance with such specifications as may be prescribed in this behalf.
Contract Carriage Section 2(7) of the M.V.Act, 1988 Contract carriage means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf, on a fixed or an agreed rate or sum:
a) On a time basis, whether or not with reference to any route or distance or
b) from one point to another an d in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey.
7. From the above definitions it emerges that for the entire period of the dispute, viz; 01-04-2000 to 2007-08, irrespective of the amendments to the definition of tour operator in the finance Act,1994 the activities of the appellant would not attract service tax under the said service category. To be covered under the definition of Tour operator the person should be engaged in operating tours in a tourist vehicle covered by a permit. Tourist vehicle has a meaning assigned to it in Section 2 (43) of the Motor Vehicles Act, 1988 which states that a contact carriage constructed or adapted or equipped or maintained in accordance with prescribed specifications. The specifications are provided in Rule 128 of the Motor Vehicle Rules. The departments do not have a case that the buses of the assessee used for carrying passengers as per contract to destinations conform to such specifications so as to make them fall within the definition of contract carriages. It is not disputed that the vehicles used by the assessee for the impugned services are stage carriage vehicles and are carrying out the impugned activities only on the basis of temporary permits issued by A.P. Transport Authorities. They do not at all become contract carriages as they do not conform to the definition of contract carriage in Section 2(7) of M.V. Act.
8. The assessee admittedly obtains special permit for meeting special situation under Section 88(8) of the Act which does not fall in the definition of tourist vehicle or contract carriage and attract levy of service tax. We draw sustenance for our conclusions from the following observations of the Honble Madras High Court in the SFBAT case referred to supra.
20. If we turn to the definition of the "contract carriage", which is defined in Section 2(7) of the Motor Vehicles Act, it becomes clear that there is identical language used therein (with emphasized words). Therefore, it cannot be said that the said vehicle which is covered under Section 72(2)(xvii) can never become a "tourist vehicle". We hasten to add, however, that before any such vehicle is treated as a "tourist vehicle", it will have to conform to the conditions laid down for the tourist vehicle in Rule 128 of the Motor Vehicles Rules. That would by far be the only condition.
21. Now turning back to Section 65(52), which defines "tour operators", it merely mentions "user of a tourist vehicle" covered by a permit granted under Central Motor Vehicles Act, 1988 or the rules framed thereunder by a person engaged in the business of operating tours. It, therefore, cannot be countenanced that a reserve vehicle under the stage carriage permit cannot acquire the character of contract carriage and can, therefore, never be terrrted as a "tourist vehicle" and therefore the owners of such vehicles cannot be covered under the Finance Act and more particularly under Section 66(52) thereof.
24. 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 such specifications as may be prescribed more particularly the specifications prescribed under Rule 128 of the Motor Vehicles Rules. Therefore, this ruling will not help the petitioners to suggest that a vehicle covered under Section 72(2)(xvii) merely for that reason or merely because it is having permit under Section 88(8) of the Motor Vehicles Act for its occasional use can never become a tourist vehicle. A plain reading of the provisions of the Motor Vehicles Act says that any such vehicle which answers the description of the tourist vehicle under Rule 128 and which would run under a contract would become a tourist vehicle and once it becomes a tourist vehicle so long as it is being used under any permit under the Motor Vehicles Act, by a person who is engaged in the business of operating the tours then, the requirement of the Finance Act would be complete.
25. It must be remembered that in the aforementioned decision, the Apex Court was considering the question as to whether the petitioner was excluded because of the scheme and whether the petitioner's special permit could be said to be a contract carriage "as contemplated under the scheme" In fact, in the beginning of paragraph 4 the Supreme Court itself says that a special permit has some of the features of the contract carriage permit. It also says that a special permit is ordinarily taken to meet a need that exists for a few days like taking a marriage party or persons going on a pilgrimage, etc. A spare bus, which answers the description of "tourist vehicle" as per Section 2(43) of the Motor Vehicles Act, if used for taking a marriage party or taking persons on a pilgrimage would undoubtedly be a "contract carriage under the special permit" though the permit under which it would be operating would not be a contract carriage permit. Once the vehicle is operating under the special permit as a contract carriage, i.e. within the meaning of Section 2(7) of the Motor Vehicles Act, the provisions of Section 65(50) to (52) of the Finance Act would be attracted. We do not think, therefore, that the decision is any manner helpful to the petitioners. The first contention to the. effect that a spare bus operating under a permit under Section 88(8) of the Motor Vehicles Act can never be a contract carriage and, therefore, can never become a "tourist vehicle" is rejected. (emphasis supplied)
9. The above ratio of the SFBAT judgment finds echo in the Tribunal decision in the case of CCE, Rajkot V CCE, Bharat Travels 2010 (20) STR 526 (Tri-Ahmd). The relevant portion of the decision is reproduced below:
2.?Briefly stated facts of the case are department initiated proceeding against the respondent after conducting a survey.
A show cause notice was issued against the respondents alleging that they were rendering service of tour operators, thereby asking them to take registration and pay service tax on the service rendered by them. The lower adjudicating authority confirmed the demand of service tax on the respondent. Aggireved by the same they filed an appeal against the said order, with Commissioner (Appeals). The Commissioner (Appeals) while taking into consideration the relevant definition of tour, tourist vehicle, tour operator, and vide relying upon the decision of Honble Madras High Courts decision in the case of Secy. Federn. of Bus-Operators Assn. of T.N. v. UOI & Others reported in 2006 (2) S.T.R. 411 (Mad.) = 2001 (134) E.L.T. 618 (Mad.) held that the service provided by the respondent did not fall within the definition of tour operator and accordingly set aside the lower adjudicating authority order. Aggrieved, Revenue filed this appeal.
3.?The contention of the appellant is that the Commissioner (Appeals) has relied upon certificate issued by Regional Transport Authority, Rajkot for bringing the vehicles used by the respondent out of the purview of definition of tourist vehicle as defined in the Section 2(43) of the Motor Vehicle Act, 1988 at the conclusion arrived at by the appellate authority was prima facie wrong and he has overlooked that the lower adjudicating authority has personally examined the vehicles and arrived at conclusion that the vehicle predominantly covered the specification made in Rule 128 of Motor Vehicle Rules, 1988. They also placed reliance on the decision referred supra wherein the Honble High Court has decided the issue of requirement of tourist permit in favour of Revenue. They also placed reliance on decision of High Court of Madras in the case of Sri Pandyan Travels v. CCE, Chennai reported in 2006 (3) S.T.R. 151 (Mad.) = 2004 (163) E.L.T. 409 (Mad.).
4.?We find that the learned Commissioner (Appeals) basing his findings on definitions of tour, tourist vehicle and tour operator which stood at the material time and certificate issued by Regional Transport Authority, Rajkot reached to the conclusion that the vehicles used by respondent were out of purview of the definition of contract carries. For better appreciation the definition of tour operator is extracted here under :
Tour Operator - Tour Operator means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicle Act, 1988 or the rules made thereunder From the above it follows that the requirement of permit granted under the Motor Vehicle Act, 1988, it was imperative that the vehicle being used by the respondent to possess tourist permit and the vehicle is a tourist vehicle. Undisputedly the impugned vehicles are out of purview of the definition of tourist vehicle. The reservation of the department on this aspect is that the conclusion arrived at by the learned Commissioner (Appeals) is prima facie wrong as much as the tourist vehicle operated by the respondent will not be out of the purview of the said definition. The reservation is without any evidence and it neither challenge the veracity or the contents of the certificate. As regard the other grievance of the appellant that the learned Commissioner (Appeals) has not taken into consideration the fact that the lower adjudicating authority has himself seen the vehicle and found that the vehicles predominantly covered the specifications in Rule 128 of Motor Vehicle Rules, 1988. It is pertinent that Lower Adjudicating Authority refer to one of the sub-clause of the Rules regarding painting of a strip on the vehicle and silent regarding remaining 12 clauses of total of 13 clauses. Once the vehicle is out of purview of the definition of the tourist vehicle the decision rendered by the Honble Madras High Court referred supra is of no avail to the appellants. Learned Commissioner (Appeals) has rightly relied upon the decision of Honble High Court of Madras in the case of Secy. Federn. of Bus-Operators Assn. of T.N. v. UOI & Others reported in 2001 (134) E.L.T. 618 (Mad.). The appellant could not produce any evidence to demolish the conclusion arrived at by the learned Commissioner (Appeals). The Revenues appeal is devoid of merits. Therefore the Commissioner (Appeals) order is upheld and Revenues appeal is dismissed.
10. Though an appeal was preferred by department against this Tribunal order, however the same was dismissed by the Honble Apex Court in 2012 (27) STR J79 (S.C.). Similar view has been taken in Jai Somnath Transport V CST , Mumbai 12016 (41) STR 660 (Tri- Mum) 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 judgment 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 that is contemplated under Section 2(43) of the Motor Vehicles Act while defining the tourist vehicle is that it should be a contract carriage and should have been constructed or adapted and equipped or maintained in accordance with the specifications prescribed. We have already pointed out that those specifications are provided in Rule 128 of the Motor Vehicles Rules in case of vehicles other than motor cabs. Therefore, even if the Motor Vehicles Act and the Rules framed thereunder contemplate the tourist permit, it is not necessary that every tourist vehicle must have a tourist permit. Again, it is to be seen that we would be bound by the language of Section 65(50) to (52) alone in interpreting those provisions. Merely because the Motor Vehicles Act provides for tourist permit, it would not mean that Section 65(52) of the Finance Act also contemplates only a tourist permit. We cannot do violence to the language of the provisions by holding that a tourist vehicle contemplated under the Finance Act must be a vehicle having only tourist permit. Some other decisions cited by the ld. AR are stay matters and not final decisions. Therefore they cannot be relied upon.
In view of the above, we unhesitatingly hold that pre-10-9-2004, the activity undertaken by the appellants is not leviable to tax under the Tour Operators Service.
5.?We may now consider the period post-10-9-2004. The definition of Tour Operator read as under :
Tour Operator means any person engaged in business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the Rules made thereunder. As per the first part of this definition, any person who is engaged in the business of planning, scheduling, organizing or arranging tours is a Tourist Operator. We have already noted that the second part of the definition, which requires the vehicle to be a tourist vehicle, does not cover the services rendered by the parties in the category of Tour Operator. We find in some cases such as S.K. Travels and Buthello Travels, and the SCN only referred to the second part of the definition even for the period post-10-9-2004. The findings by the Commissioner in the Orders in respect of these parties and in the case of Jai Somnath do not explain at all how and whether the activity is covered by the first part of the definition. In such cases the appeals fail as held in Para 4 above.
5.1?In other cases we may examine whether the appellants are engaged in the business of planning, scheduling, organizing or arranging tours. We have seen the Agreements between appellants and their clients. We find that the appellants have only planned for providing vehicles of a specific capacity with a particular schedule. We also note that at the time of expansion of the definition of Tour Operator on 10-9-2004, C.B.E. & C. Circular No. 80/10/2004-S.T., dated 17-9-2004 clarified that while the existing levy on tour operators engaged in operating tours in tourist vehicles remain 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 limitations regarding transportation by tourist vehicle only which means it will include air-rail-cab travel also. From the above clarification, the intent of the legislature was to expand the levy of Service Tax for planning/scheduling/organizing/arranging the package tours for all modes of travel. It was not intended to expand the scope to cases such as the present one. In the present case, the appellants provide/supply the contract carriage business (not tourist vehicles) to their customers on their demand only. Therefore the activity of the appellant is not covered by the definition of Tour Operator for the period post-10-9-2004.
11. From the above discussions, we are of the considered opinion that the impugned activities carried out by the assessee will not attract the definition of Tour operator under section Section 65 (52) of Finance Act,1994 prior to 10.09.2004 and under Section 65 (115) for the remainder period covered in this case. This being so, the demands involved in the appeals filed by the assessee cannot sustain and the related impugned orders are liable to be set aside, which we hereby do. In consequence department, appeal no. 312/2007 is to be dismissed.
12. In the result, Appeals No.ST /284/2007, ST/366/2008 and ST/ 379/2009 are allowed with consequential reliefs, if any, as per law. The appeal No. ST/ 312/2007 is dismissed.
(Operative part of this order was pronounced in court on conclusion of the hearing) (MADHU MOHAN DAMODHAR) MEMBER(TECHNICAL) ( SULEKHA BEEVI, C.S.) MEMBER(JUDICIAL) ..dks 2