COMMISSIONER OF C. EX., RAJKOT Vs. BHARAT TRAVELS

JUDGEMENT

(1.) REVENUE is in appeal against the order in appeal No. 135/2006/92(RAJ)/Commr.(A)/DK/Raj, dt. 7 -3 -06 whereby Commissioner (Appeals) has set aside the lower adjudicating authoritys order demanding service tax and imposing penalty on the respondent. The respondents are neither present nor represented. We have heard learned SDR for the department.

(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.).