Custom, Excise & Service Tax Tribunal
M/S Friends Tour & Travels vs Cce, Noida on 20 September, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 20.09.2013
Date of Decision : 20.09.2013
For Approval & Signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
YEs
ST/873/2008/2008
[Arising out of Order-in-Appeal No. 124-125/CE/APPL/Noida/2008 dated 27.10.2008 passed by the Commissioner Central Excise & Service Tax, Noida]
M/s Friends Tour & Travels, Appellant
Vs.
CCE, Noida Respondent
Appearance:
Shri Sudhir Malhotra, Advocate - for the Appellant
Shri Govind Dixit, DR - for the Respondent
ST/72/2008
CCE, Noida Appellant
Vs.
M/s Friends Tour & Travels, Respondent
Appearance:
Shri Govind Dixit, DR - for the Appellant
Shri Sudhir Malhotra, Advocate - for the Respondent
Coram : Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, Member (Technical)
Final ORDER NO. 57778-57779/2013
Per Sahab Singh :
These are two appeals one filed by M/s Friends Tour & Travels Noida (hereinafter referred to as assessee) and second filed by Commissioner Central Excise (Revenue) against the same Order-in-Appeal No. 124-125/CE/APPL/Noida/2008 dated 27.10.2008 passed by Commissioner Central Excise (Appeal), Noida.
2. Brief facts of the case are that on visit to M/s L. G. Electronics (I) Pvt. Ltd. Noida by the officers of Central Excise Commissionrate it was observed that the assessee was providing buses/car/taxies to M/s L.G. Electronics against which large amount was received by the assessee and assessee has not paid any service tax on this activity of providing the buses/car/taxies under the taxable service of Tour Operator & Rent-a-cab operator falling under clause (n) and (o) of clause (105) of Section 65 of the Finance Act. Accordingly a Show Cause Notice dated 30 06.2005 was issued to the assessee demanding the service tax amounting to Rs. 28,64,516.86/- alongwith interest and also proposing the penalties under various provision of the Finance Act. Proprietor of the assessee was also asked to Show Cause as to why penalty should not be imposed on him. This Show Cause Notice was adjudicated by Additional Commissioner, Commissioner Central Excise Noida vide impugned order 36/Adc/Noida/2006 dated 29.10.2006 who confirmed the demand of service tax and interest and imposed the penalty on the assessee as well on Shri Satveer Singh, Proprietor. Both filed appeals against the said Order-in-Original before the Commissioner (Appeal) Central Excise Noida, who vide Order-in-Appeal 4-5-CE/Noida/2008 11.01.2008 rejected their appeals for non-compliance of orders of pre-deposit. Subsequently the assessee and Shri Satveer Singh, Proprietor, filed appeal before the Tribunal against this Order-in-Appeal and Tribunal vides its find order No. ST/79-80/2008 dated 06.05.2008 remanded the matter to Commissioner (Appeals) with the direction to the assessee to deposit the sum of Rs. 5 lakhs within 8 weeks. After this amount of pre-deposit was paid by the assessee the Commissioner (Appeal) vide Order-in-Appeal No. 124-125/CE/APPL/Noida/2008 dated 27.10.2008 upheld the demand of service tax and interest against the assessee as well as the penalties under section 75 A and 77 of the Finance Act but set aside the penalty under Section 78 of the Finance Act and reduced the penalty under Section 76 from Rs. 28,64,516.86/- to Rs. 5 lakhs on the assessee. The penalty on Shri Satveer Sigh, Proprietor, was set aside by the Commissioner (Appeal). The assessee has challenged this Order-in-Appeal against the confirmation of demand of service tax and interest and also the penalty under Section 75A and 77 of the Finance Act and the Revenue has challenged the reduction the penalty under Section 76 of the Finance Act and also setting aside the penalty under Section 78 of the Finance Act.
3. Heard both sides.
4. We find that issue relates the levy of service tax under the category the tour operator & rent-a-cab operator service. For the sake of convenience definition of tour operator & rent-a-cab operator service are re-produced below:
Tour operators 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 their under. Tour means a journey from one place to another irrespective of the distance between such places and the taxable services means any services provided to any person by a tour operator in relation to a tour. (91) rent-a-cab scheme operator means any person engaged in the business of renting of cabs;
Taxable service are defined as under:
Section 65(105)
(n) to any person, by a tour operator in relation to tour;
(o) to any person, by a rent-a-cab scheme operator in relation to the renting of a cab;
We find that assessee was providing buses to L.G. Electronics for dropping the staff of L.G. Electronics and was receiving the payment for the service. We find that the definition of tour is to mean a journey from one place to another irrespective the distances between such places and taxable service means any service provided to any person by a Tour operator in relation to tour. We find that there is no dispute that the activity of assessee for providing buses to L.G. Electronics for dropping of the staff is covered under the definition of the Tour and consequently the appellant / assessee is also falls under category to Tour operator. We therefore find no infirmity in order of Commissioner (Appeal) with regard to liability of service tax under tour operator service
5. As regards the Rent-a-Cab Scheme Operator we find that the appellant/assessee was providing cars on rent to L.G. by taking the same from others and receiving payment from L.G. and after deducting the commission which ranged from 5 to 10% the assessee was giving the amount to those persons from whom the cars were taken. We find that Rent-a-Cab scheme operator means any person engaged in the business of Rent-a-Cab and it is not relevant whether any person who is engaged in business of Rent-a-Cab owns vehicle or gets vehicles on hire. We find that appellant is covered under definition of Rent-a-Cab Operator. We therefore find no infirmity with regard to the confirmation of service tax under Rent-a-Cab scheme service against the assessee.
6. We find that the assessee has no raised the issue of invocation of extended period of limitation either before the original authority or before the Commissioner (Appeal). We therefore do not entertain this argument of the assessee on invocation of the extended period of limitation at this stage in appeal before this Tribunal as this was not raised before the lower authorities. Accordingly we hold that assessee is required pay the service tax under the tour operator service and Rent-a-Cab service.
7. We find that appellant/assessee has stated before the Tribunal in earlier proceedings the fact of Notification No. 15/2007 dated 04.04.2007 issued by the Central Government under Section 11 C of the Central Excise Act for allowing the 60% abatement for the period 01.04.2004 was raised and the Tribunal in its order dated 06.05.2008 has mentioned this notification and also the assessee on 23.06.2007, 01.07.2007, 25.08.2007 brought this notification to the notice of the Commissioner (Appeal) but we find that commissioner (Appeal) in the impugned order has not taken any cognizance of this notification and has not allowed of benefit to the assessee in view of this notification. We also note that the Commissioner (Appeal) in the impugned order has set aside the penalty under Section 78 of the Finance Act and reduced the penalty under Section 76 of the Act invoking the Section 80 of the Finance Act. We find that if the Section 80 is invokable then the penalty under Section 76 also cannot be imposed. We therefore find contradiction in the findings of the Commissioner (Appeal) in reducing penalty under Section 76 of the Finance Act and setting aside penalty of 78 of the Act. We therefore remand the matter back Commissioner (Appeal) Central Excise to decide the matter after considering the No. 15/2007 dated 04.04.2007 issued under Section 11C of the Central Excise Act and also decide the issue with regard the imposition penalty of under Section 76 and 78 of the Finance Act, afresh after affording hearing to the appellant. Both appeals are disposed of in above terms.
(Justice G. Raghuram) President (Sahab Singh) Member (Technical) Neha 2