SHAIL SHIKHAR ASSOCIATES Vs. COMMISSIONER OF CENTRAL EXCISE

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. 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. Subsections 105(n), 113, 114 and 115 of section 65 of Finance Act, 1994 are as under:

(2.) THE argument on behalf of the Appellants is that they are not planning, scheduling, organizing or arranging tours. They are only operating a ropeway taken on lease by them from the Municipality. They contest that such operators will not be covered by definition at 65(115). They rely on the decisions of the Tribunal in Usha Breco Ltd. v. CCE : [2007] 8 STT 191 (New Delhi - CESTAT).

(3.) THEY also point out that no Show Cause Notice has been issued for appropriating the tax paid by them under protest. So they should be granted the refund claimed by them.