Commissioner Of Service Tax vs M/S Ashwamegh Travel Agency
- CitationAppeal No. : ST/27/2008
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals)'s order setting aside the demand is correct where the respondent establishes, through an RTO certificate, that the vehicle was not a tourist vehicle, because the exemption notification dated 7.7.2009 granting relief to a tour operator holding a contract carriage permit for inter-state or intra-state transportation of passengers (excluding tourism, conducted tours, charter or hire service) was given retrospective effect from 1 April 2000 by section 75 of the Finance Act, 2011, and the exemption therefore applies to the demand for the period 2002-2003.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIA-86/2007/STC/RAJU/COMMR-A-/AHD dtd 5.12.2007 Passed by Commissioner of Service Tax-SERVICE TAX AHMEDABAD ]
Commissioner of Service Tax- SERVICE TAX - AHMEDABAD - Appellant(s)
Vs
M/s Ashwamegh Travel Agency - Respondent (s)
Represented by For Assessee : Shri Vipul Khandhar, Advocate For Revenue : Shri L Patra, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
Date of Hearing / Decision : 14/7/2015
ORDER No. A/11164 / 2015 dtd 14/7/2015
Per : Mr.P.K. Das,
Revenue filed this appeal against order of the Commissioner (Appeals), where the adjudication order was set aside.
2. After hearing both the sides and on perusal of records, we find that the demand of Service tax was raised under the category of Tour Operator Service for the period 2002-2003. The Adjudicating authority confirmed the demand of tax alongwith interest. The Commissioner (Appeals) set aside the adjudication order on the ground that the respondent produced the certificate from RTO as the vehicle was not tourist vehicle. Notification No 20/2009-ST dtd 7.7.2009 exempted the taxable service referred to in sub-clause (n) of clause (105) of section 65 of the Finance Act provided or to be provided to any person, by a tour operator having a contract carriage permit for inter-state or intrastate transportation of passengers, excluding tourism, conducted tours, charter or hire service, from whole of the service tax leviable thereon under Section 66 of the said Finance Act 1994. By Finance Act 2011(Act No 8 of 2011 dtd 8.4.2011) the said notification was given retrospective effect from 1st day of April, 2000. The relevant portion of the Finance Act is reproduced below :
75. Validation of exemption given to a person by tour operator having contract carriage permit for inter-state or intra state transportation of passengers with retrospective effect (1) The notification of the Government of India in the Ministry of Finance (Department of Revenue) number GSR 492 (E), dated the 7th July, 2009, issued in exercise of the powers conferred by sub-section (1) of section 93 of the Finance, 1994(32 of 1994), granting exemption from the whole of service tax leviable under Section 66 of that Act to any person by a tour operator having a contract carriage permit for inter-state or intra-state transportation of passengers, excluding tourism, conducted tour, charter or hire service shall be deemed to have, and deemed always to have, for all purpose, validity come into force on and from the 1st day of April 2000, at all material times.
2] Refund shall be made of all such service tax which has been colleted but which would not have been so collected as if the notification referred to in sub-section (1) had been in force at all material times.
3] Notwithstanding anything contained in the Finance, 1994 (32 of 1994) an application for the claim of refund of service tax shall be made within six months from the date on which the Finance Bill, 2011 receives the assent of the president.
Explanation : For the removal of doubts, it is hereby declared that the provisions of sections 11B of the Central Excise Act, 1944 (1 of 1944), shall be applicable in case of refunds under this section.
3. In view of the above, we find that there is no reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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