SHAIL SHIKHAR ASSOCIATES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE Appellants have leased a ropeway installed by Municipal Board, Mussorie at Mall Road, Mussorie and are engaged in operating it to entertain tourists by carrying tourists from Mall Road to Gun Hill and back to Mall Road.

(2.) After amendment of Section 65(115) of Finance Act, 1994 to include any means of transport in the definition for tour operator, the Superintendent of Central Excise, Dehradun asked them to deposit service tax on the charges collected by them from the tourists and they paid such tax under protest for the period Oct. 2004 to September 2005. Later they claimed refund of the said tax paid because they were of the view that they will not be covered by the definition of tour. The Assistant Commissioner rejected the refund. Aggrieved by the order the Appellants filed an appeal with Commissioner (Appeals) who rejected their appeal. Aggrieved by the order of the Commissioner (Appeals) this appeal is filed before the Tribunal. First it is necessary to record the relevant entries in Finance Act, 1994. Sub -sections (105)(n), (113), (114) and (115) of Section 65 of Finance Act, 1994 are as under:

(3.) THEY also submit that ropeways is an item covered by entry 13 of List -II of Seventh Schedule of the Constitution of India and only the States can pass any law dealing with the subject. They submit that the State is already charging entertainment tax on this activity.