Cce, Allahabad vs Shri Athar Yasin Rine

Service Tax Appeal No. 246 of 2010 with Cross Objection No. 31 of 2011

(Arising out of the Order-in-Appeal No. 72-ST/APPL/ALLD/2009 dated 30/11/09 passed by the Commissioner (Appeals), Central Excise, Allahabad).

For approval and signature:

Honble Mr. Justice G. Raghuram, President

Honble Mr. H.K. Thakur, Technical Member

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of 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, Allahabad . Appellant

vs.

Shri Athar Yasin Rine . Respondent

Appearance:

Shri B.B. Sharma, A.R.  for the appellant/Revenue.

None  for the Respondent.

Coram: Honble Mr. Justice G. Raghuram, President

Honble Mr. H.K. Thakur, Technical Member

Final Order No. 52190/2015 dated 07/07/2015

Per. H.K. Thakur :-

This appeal has been filed by the Revenue against OIA No. 72/ST/APPL/ALLD/2009 dated 30/11/2009. In this OIA dated 30/11/2009 First Appellate Authority has set aside the confirmation of demand on the grounds that activities undertaken by Shri Athar Yasin Rine does not come within the purview of Tour Operator Service.

2. Shri B.B. Sharma, (AR) appearing on behalf of the Revenue argued that respondent is providing Tour operator service for carrying employees of M/s IFFCO, Phoolpur, Allahabad from their residence to office and back. That the activities undertaken amounts to providing tour operator service in view of definition given in Section 65 (115) of the Finance Act, 1994. It was his case that as per the definition of tourist vehicle given in Section 65 (114), and Tour given in Section 65 (113) of the Finance Act, 1994; readwith Rule 128 of the Central Motor Vehicles Rules, the respondent was providing Tour Operator Service.

3. None appeared for hearing on behalf of the respondent whom a notice was issued. There is also no request for adjournment from the respondent.

4. Heard learned AR and perused the case records. It is observed that First Appellate Authority has mainly gone by a dictionary meaning that transportation of employees is neither a pleasure trip nor a visit for special purpose to learn or look around the place visited. It is observed that when a definition of Tour is given in Section 65 (76) of the Finance Act, 1994 there is no necessity to borrow the definition given in dictionaries. Also no findings are given by the First Appellate Authority whether the vehicle provided for carrying employee confer to the criteria required under Section 2 (43) of the Motor Vehicles Act (1988) readwith Rule 128 of the Central Motor Vehicles Rules 1989. The matter is, therefore, required to be remanded back to Commissioner (Appeals) to decide the matter under denovo consideration in the light of definitions given in the Finance Act, 1994 and pass a reasoned order.

5. Appeal filed by the Revenue is allowed by way of remand to the First Appellate Authority.

(Operative part of the order pronounced in the open court.)

andl

(Justice G. Raghuram)

President

(H.K. Thakur)

Technical Member

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