Custom, Excise & Service Tax Tribunal
Office Of Chief Conservator vs Dehradun on 1 April, 2022
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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Service Tax Appeal No.52809 of 2018 -SM
(Arising out of Order-in-Appeal No.DDN/ST/000/APPL-DDN/HALDWANI/22/2017-18 dated
9.3.2018 passed by the Commissioner (Appeals), Central Goods & Service Tax, Dehradun]
Office of Chief Conservator/Director Appellant
Corbett Tiger Reserve, Ramnagar,
Distt.-Nainital, Uttarakhand.
VERSUS
Commissioner of Central Goods & Service Tax Respondent
Dehradun.
APPEARANCE:
None for the appellant Ms. Tamanna Alam, Authorised Representative for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER No.50337/2022 DATE OF HEARING/DECISION: 01.04.2022 ANIL CHOUDHARY:
The appellant is absent on call. The appellant had filed submissions earlier on merits and ld. Departmental Representative relies on the impugned order.
2. The appellant is a Chief Conservator of Forest (Government of Uttarakhand). Service Tax demand of Rs.41,50,631/-was raised vide show cause notice dated 6.4.2016 for the period April, 2014 to March, 2015 with proposal to impose penalty under Section 70, 77 and 78.
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3. The allegation in the show cause notice is that the appellant is engaged in the business of planning, scheduling and organising or arranging tours for the tourists visiting Corbett National Park, Ramnagar. The appellants have several canters (vehicles) and they also grant permits to vehicles to carry tourists into the jungle and enable tourists to have close glimpse of flora and fauna present in the jungle. It appeared to Revenue that the said activities fall under the category of "Tour Operator Service" as defined under Section 65(115) of the Finance Act, 1994 and thus, they are liable to pay service tax on same. The appellant also provides "Short Term Accommodation" in their rest houses located inside the forest on payment of charges.
4. The appellant contested the show cause notice by urging that they are only collecting entry fee and are not at all engaged in the business of planning, scheduling, organising or arranging tours. The visit to the Corbett Tiger Reserve is as per entry fee, pre-determined by the Forest and Environment Department of the Government. Further, the appellant could not modify the fee. Thus, they do not fulfil the conditions precedent, as required under the definition of "Tour Operator" and are not taxable under the Act. The appellant also relied upon the precedent order-in-original dated 23.03.2016, in their own case, whereby the Ld. Commissioner has set aside/dropped the demand on the amount collected as 'entry fee'. It was further pointed out that Corbett Tiger Reserve is established by the Government of Uttarakhand vide Notification dated 26.02.2010 issued under Section 38 V of Wildlife Protection Act, 1972. It is mandated to manage and administer an area designated and legally notified as 'Corbett Tiger Reserve' for the purpose of bio-diversity conservation. Thus, the activities of the 3 appellants are as per Statutes under various rules and regulations laid down by the Government, and it is not a business or profit earning body.
5. It is further pointed that under Section 28 of the Wildlife (Protection) Act, 1952 read with Section 35(8), Chief Wildlife Warden may grant any person, a permit to enter a National Park or Sanctuary for the purposes of
(a) investigation or study of wildlife and purposes ancillary or incidental thereto (b) photography (c) scientific research (d) tourism etc. It is further pointed out that Section 28 (2) of the Act provides that, "a permit to enter or reside in such national park or sanctuary shall be issued subject to such conditions and on payment of such fees as may be prescribed". Thus, whatever fee the appellant is collecting is by way of statutory levy, are not towards any commercial activities. It was further urged that the opportunity is provided to the Tourists to visit Corbett Tiger Reserve is in accordance with the provisions of law. It was further urged that the accommodation was provided to the visitors, are in the form of Forest Rest Houses, which are primarily accommodation facilities for Forest Officer during field visit, deep inside the forest. Subject to availability, the accommodation is provided to visitors on payment of fee, as prescribed by the Government. Such fee collected is deposited in the Government exchequer. Thus, whatever Revenue is collected by way of entry fee or for accommodation in the various rest houses is as per Statutory Provisions and as per the Government orders. Further, it was urged that under the Budget Provisions in 2015, it has been provided that Service Tax exemption is with respect to the admission to a museum, zoo, national park-wildlife sanctuary and a tiger reserve provided by non-government entity. Notification No.25/2012 was amended by Notification No.6/2015 dated 1.3.2015, whereby under Entry 4 No.45, "services provided by way of admission to a museum, national park, wild life sanctuary or Tiger Reserve. Further, under Clause J to Section 66 D (Negative List of Service), admission to entertainment event or access to amusement facility, do not constitute taxable service.
6. The Adjudicating Authority framed the issue whether the appellant is liable to pay service tax for providing (i) Tour Operator Service on the amount collected as entry fee, canter ride, museum and hathi safari charges and short term accommodation.
7. In the order-in-original, the Asstt. Commissioner took notice of the clarificatory CBEC Circular no.96/7/2007/ST dated 23.08.2007, whereby on the question of certain statutory functions/services provided by various Government functionaries and Departments of the Government, it was clarified that the activity assigned to and performed by sovereign / Public Authorities under the provisions of any law are statutory duties. The fee and or amount collected as per the provisions of the relevant statute for performing such functions is in the nature of a compulsory levy and are deposited into the Govt. account. The Asstt. Commissioner was pleased to drop the demand on the entry fee for Museum and National Park. However, he held that providing of service such as canter ride, hathi safari cannot be considered as statutory fee, nor the services can be considered in the nature of a statutory activity, even including entry to museum. Further, reference was made to para-7.5 of the clarification No.DOF.334/5/2015/TRU dated 28.02.2015, which states services that - the services provided by way of admission to a Museum, Zoo, National Park, Wild Life Sanctuary and a Tiger Reserve is being exempted. These services when provided by the Government or local authority are already covered under the Negative List. 5
8. It appeared to the Asstt. Commissioner that under the amendment to the Mega Exemption Notification, "the exemption is restricted to admission only and it does not exempt the other activities undertaken. Accordingly, the Asstt. Commissioner held that the appellant is required to pay service tax as collected towards Canter Ride, Museum and Hathi Safari Charges.
9. Similarly, the Asstt. Commissioner held that the appellant is liable to pay service tax on the charges collected towards short term accommodation and forest rest house. As the activities of providing of short term accommodation for consideration, fall under the definition "short term accommodation service", he held that the appellant is neither Government nor local authority under Clause (a) of Section 66D of the Finance Act.
10. Accordingly, an amount of Rs.17,80,118/- was confirmed for the period 2014-2015 on the appellants for providing tour operators, and on short term accommodation services - service tax amount of Rs.5,56,785/-, and for providing accommodation service Rs.12,23,332/-. Further, the amount of pre-deposit made during investigation of Rs.13,06,625/- was ordered to be appropriated. Further, equal amount of penalty was also imposed under Section 78 of the Act ibid along with interest.
11. Being aggrieved, the appellant preferred appeal before the ld. Commissioner (Appeals), who vide impugned order-in-appeal, rejected the appeal concurring with order of the Asstt. Commissioner.
12. Ld. Commissioner (Appeals) observed that under exemption notification read with clarification by TRU, only exempts the entry fee and thus, other amounts collected are liable to service tax. The ld. Commissioner (Appeals) observed that 'Kumaon Mandal Vikas Nigam' and 'Garhwal Mandal 6 Vikas Nigam', which are providing several accommodations and guest houses, are regularly paying service tax, which are owned by the Government.
13. Being aggrieved, the appellant is before this Tribunal, inter alia, reiterating the grounds mentioned hereinabove. It is further urged that the appellant is a Statutory Authority under Wild Life Project and Government officer discharging duties of Forest Officers.
14. It is further urged that it is undisputed that Corbet Tiger Reserve have been set up under Wild Life Project Act. It is further undisputed that whatever charges collected by the appellant as a Government Authority, are as per the Government Orders provided under relevant Statute. It is further undisputed that whatever charges for entry fee, etc. and on short term accommodation are collected are deposited in the Government Exchequer and all expenses for maintaining the Corbet Tiger Reserve including the salary of the staff and the officers are paid out of the budget allocation of the state. The activities of the appellant are not comparable to the activities of the Garwal Mandal Vikas Nigam/Kumaon Mandal Vikas Nigam, as the said Nigam are established for providing and promoting the tourism, but such is not the case of the appellant. Further, tourism is not the exempted activity under Notification No.25/2012, as amended or under Negative List under Section 66 D. Accordingly, ld. Counsel prays for allowing their appeal with consequential benefits.
15. Having considered the rival contentions, I hold that the appellant is a Government Authority under the relevant Wild Life Law. Further, the Authority is rendering statutory activities or services under various 7 Government orders under the relevant statutes. I also take notice that the appellant is depositing all the money collected for whatever charges from the visitors in the Government Exchequer. I hold that the activities of the appellants are exempted from the levy of service tax under Section 66 D (a) read with Mega Exemption under Notification No.25/2012-ST, as amended, read with TRU Clarification dated 28.02.2015 (supra).
16. Accordingly, the appeal is allowed and the impugned order is set aside. The appellant is entitled to consequential benefits in accordance with law.
[Order dictated & pronounced in open court].
(ANIL CHOUDHARY) MEMBER (JUDICIAL) Ckp.