Custom, Excise & Service Tax Tribunal
Cce, Indore vs M/S. Ramsons Travels & Tours on 18 December, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT III SERVICE TAX APPEAL NO. 181 OF 2007 [Arising out of Order-in-Appeal No. IND-I/04/2007 dated 11.1.2007 passed by the Commissioner (Appeals-I), Customs & Central Excise, Indore] For approval and signature: Honble Mr. P.K. Das, Member (Judicial) Honble Mr. Rakesh Kumar, 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 would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy of the order? 4. Whether order is to be circulated to the Departmental authorities? CCE, Indore Appellant Vs. M/s. Ramsons Travels & Tours Respondent
Appearance:
Shri L.B. Yadav, Departmental Representative, for the Revenue, None for the respondent Coram:
Honble Mr. P.K. Das, Member (Judicial), Shri Rakesh Kumar, Member (Technical) Date of Hearing: 18th December, 2008 FINAL ORDER NO._________________ dated __________ Per RAKESH KUMAR:
This is a Revenues appeal against the impugned Order-in-Appeal dated 11th January, 2007. The issue involved in this case is, as to whether during the period of dispute i.e. from 5th March, 2005 to 6th February, 2006, the respondents were providing tour operators service and, hence, liable for service tax. None appeared for the respondents. Heard learned Departmental Representative (D.R.).
2. Learned D.R. while reiterating the grounds of appeal, submitted that the respondents were operating tour in tourist vehicles and, therefore, their activity would attract service tax. He relied upon the Tribunals judgment in the case of M.P. Transport Service vs. CCE, Bhopal, reported in 2007 (5) STR 47 (Tri.-Del.) and the judgment of Honble Madras High Court in the case of Sri Pandyan Travels vs. CCE, Chennai, reported in 2004 (163) ELT 409 (Mad.).
3. We have carefully considered the submissions of the learned D.R. and have gone through the records. The Appellants activity is sought to be subjected to service tax under the inclusive part of the definition of Tour Operator during the period of dispute from 5th March, 2005 to 6th February, 2006. Tour Operator mean.. and includes any person engaged in operating tour in a tourist vehicle covered by any permit granted under Motor Vehicle Act, 1988. Thus under the inclusive part of the definition of Tour Operator, a person for attracting service tax under Tour Operators Service heading must satisfy two conditions
(a) He must operate Tour,
(b) Tour must be on Tourist Vehicle.
Tour has been defined under Section 65(113) a journey from one place to another irrespective of distance between such places and Section 65(114) defines Tourist Vehicle as having same meaning as that assigned to it in Section 2(43) of the Motor Vehicle Act, 1988. Section 2(43) of the Motor Vehicle Act defines Tourist Vehicle as - a contract carriage constructed and adapted and equipped and manufactured in accordance with such specifications as may be prescribed in this behalf. Rule 128 of the Central Motor Vehicle Rules provides, the specifications for Tourist Vehicle. There is no dispute that the vehicles and an contract carriage as defined under Section 2(7) of the Motor Vehicle Act, 1988. According to Department, vehicle operating as a contract carriage can be treated as a Tourist Vehicle even if it does not satisfy the requirements of Rule 128 of the Central Motor Vehicle Rules. Thus the basic issue involved in this case is, as to whether the vehicles being used by the respondent for operating tours are tourist vehicles or not as the respondents activity would be covered by the definition of tour operator service only if they operate tours in tourist vehicles. Honble Madras High Court in the case of Secretary Federation of Bus Association of Tamil Nadu vs. UOI, reported in 2006 (2) STR 411 (Mad) (Para 20 & 36) has held that the tourist vehicle must conform with the requirement of Rule 128 of the Central Motor Vehicle Rules. We find that the Honble Karnataka High Court in the case of L.V. Sankeshwar vs. Superintendent of Central Excise, Jayanagar, reported in 2006 (4) STR 257 (Kar.) has also held that service tax would be attracted only in case tour operator is using tourist vehicle and not otherwise. Tribunals judgement in case of M.P. Transport Service (supra) cited by the learned D.R. is only in respect of stay matter and in this judgement the Tribunal has made a clarification that the tourist vehicle under Rule 128 of the Central Motor Vehicle Rules. Since in this case there is no evidence that the vehicles being used by the respondent are tourist vehicles as defined under Section 2(43) of Motor Vehicle Act, read with Rule 128 of Central Motor Vehicle Rules, the respondents activity would not be covered by the tour operators service. We, therefore, find no infirmity in the impugned order. Revenues appeal is dismissed.
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) (RAKESH KUMAR) MEMBER (TECHNICAL) Dated 18th December, 2008 RK