LAWRENCE TRAVELS Vs. COMMISSIONER OF C. EX., NASHIK

JUDGEMENT

(1.) THE appeal and stay application are directed against Order -in -Revision No. 5/ST/2010, dated 23 -3 -2010 passed by the Commissioner of Central Excise, Nashik. The appellant -M/s. Lawrence Travels, Nashik, entered into agreements with various corporates in Nashik such as Glaxo Smithkline Ltd., Siemens Ltd., VIP Industries Ltd., and VTC Ltd. for transport of the company employees from their residences to their offices and back and collected service charges from these corporates for the same during the period 10 -9 -2004 to 31 -3 -2007. The department was of the view that the said service is taxable under the category of 'tour operators' services and accordingly issued a notice dated 5 -10 -2007 demanding service tax of Rs. 4,50,425/ - along with interest thereon and also proposing to impose penalties under the provisions of Finance Act, 1994. The notice was adjudicated by the Asst. Commissioner of Service Tax, Nashik who dropped the proceedings. The said order was taken up in revision by the Commissioner and the Commissioner passed the impugned order setting aside the order passed by the lower adjudicating authority and confirming the Service Tax along with interest thereon and also by imposing equivalent amount of penalty. Hence the appellant is before us.

(2.) THE ld. Counsel for the appellant submits that they have undertaken the said activity using a stage carriage and prior to 10 -9 -2004, the said activity was not taxable. The definition of tour operator under Section 65(115) of the Finance Act, 1994 was amended with effect from 10 -9 -2004 and as per the revised definition, 'tour operator' means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sightseeing, or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder. The taxable service is defined under Section 65(105)(n) as "any service provided or to be provided to any person, by a tour operator in relation to a tour". The appellant does not undertake any planning, scheduling, organizing or arranging tours so as to come within the definition of the tour operator. They are merely providing transportation of the company's employees from their residences to their offices and back. Therefore, they are not liable to Service Tax under the category of tour operator during the impugned period. He submits that in a similar case pertaining to M/s. Moharir Travels, the Tribunal vide Order No. S/595/2012/WZB/CSTB, dated 24 -4 -2012, by a majority decision, had directed the appellant therein to make a pre -deposit of part of the Service Tax. The said order was challenged before the Hon'ble Bombay High Court and the Hon'ble High Court set aside the order and directed the Tribunal to hear the appeal on merits without insisting on any pre -deposit. He further submits that the Government vide Notification No. 20/2009 -S.T. had exempted tour operator's services having a contract carriage permit for interstate or intrastate transportation of passengers, excluding tourism, conducted tours, charter or hire service, from the whole of Service Tax leviable thereon and the said exemption was given retrospective effect from 1 -4 -2000 vide Section 75 of the Finance Act, 2011. He also relies on the decision of this Tribunal in the case of Ideal Travels [ : 2012 (28) S.T.R. 257] in support of his contention. In view of the above, he prays that stay be granted.

(3.) WE have carefully considered the rival submissions.