2. The officers of Central Excise searched the premises of M/s.
Shrinath Travel Agency on 19.10.2000 and recovered various records pertaining to booking of passengers, tourists. On examination of the records, it was found that dining the period 1.4.2000 to 19.10.2000, they had provided Tour Operator Services amounting to Rs. 32,29,360/- towards booking of tickets. Service tax of Rs. 1,61,467/- was payable by them on the said amount. Statement of Shri Satya Najayan Sharma, ticket booking clerk was also recorded on that date in which he stated that they were deducting 5% service tax from the fare received by them from the passengers. On 22.11.2000, statement of Shri Shyam Lal Kabra, Proprietor of the firm was recorded in which he stated that they have 12 buses but they have not charged any service tax from the passengers.
Show cause notice was issued to the appellants demanding service tax of Rs. 1,61,467/- and proposing penalty under Section 76, 77 and 78 of the finance Act, 1994. The case was adjudicable by the Asstt. Commissioner, who confirmed the demand and imposed penalties of Rs. 15,000/- and Rs. 2,000/- respectively under Section 76 and 77. On appeal filed before the Commissioner (Appeals), the Commissioner (Appeals) upheld the order of the original authority.
3. The other Appeal No. ST/13/2003 is related to refund of the service tax paid by them during the period from 14.2000 to 31.5.2001. The ground for refund is that they were selling seats in buses operated by other bus operators holding a tourist permit granted under Motor Vehicle Act. They are not covered by the definition of Tour Operator under Section 65 (78) of Chapter V of Finance Act, 1994 and hence not liable to service tax. Show cause notice was issued to them for rejection of the refund claim on the ground that Shri Shyam Lal Kabra, Proprietor of the firm had already admitted in his statement tendered before the Superintendent (Service Tax) that they have 12 buses providing services of tour operators. Therefore, the refund claim filed by them is liable to be rejected.
4. It was argued by the ld. Advocate on behalf of the appellants that Shri Shyam Lal Kabra in his statement dated 22.11.2000 has stated that the have not collected any service tax from any of the passengers, lie further argued that the appellants are Working as a booking office and they are not working as "Tour Operators" as tours are operated by other firm and they only book the tickets on behalf of those who are operating the tours. He argued that at the best, they should be treated as travel agent on which service tax was levied on 10.9.2001. He also argued that statement of Shri Satya Narayan Sharma was not supplied to them along with the show cause notice. He referred to the definition of tour operators and stated that they are not covered by this definition, therefore, refund application which was rejected by the lower authorities on the ground that they were the tour operators is also not correct.
5. On behalf of the Revenue, it was argued that Shri Satya Narayan Sharma. Booking Clerk of the appellants has clearly admitted that they were deducting 5% service tax from the fare recovered from the passengers and 10% commission was being recovered from that amount collected by them and the balance amount was being paid to the owner of the vehicle. This clearly shows that service tax was being recovered by them from 1.4.2000 as per statement of Shri Satya Narayan Sharma. The Appellants are also covered by the definition of tour operator as they were booking the tourists and they were owner of the vehicles. The learned SDR also stated that although the show cause notice does not give the list of the documents but the statement of Shri Satya Narayan Sharma is referred to in the show cause notice as well as in the order-in-original and it must have been supplied along with show cause notice.
6. We have considered the submissions made by both the sides. We find that the appellants have been held as "Tour Operators" by the lower authorities. The Commissioner (Appeals) in his findings has held that as per the definition of "Tour Operators" as defined in Section 65 (78) of the Finance Act "any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under Motor Vehicle Act, 1988 or rules made there under" is a "Tour Operator." Tourist vehicle has been defined under Section 65(5 0 of the Act as "...meaning assigned to it in Clause (43) of Section 2 of the Motor Vehicle Act, 1988. As per the definition of Motor Vehicle Act. 1988.
the tourist vehicle has been defined as, "... a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf. The Commissioner (Appeals) has observed that appellants had admitted that the vehicles were licensed to ply the tourist vehicle. The permit issued by the Regional Transport Office are permits in respect of a particular contract carriage. The vehicles under operation for carrying passengers were "contract carriage". He also relied on the Clarification issued by the Directorate of Service Tax vide letter dated 9/1 1.4.2001 where he observed that the letter clarifies that if the bus operators do not discharge their tax liability, the tax liability would be on said 'subcontractor'.
7. The finding of Commissioner (Appeals) that Shri Kabra, Proprietor has admitted that they collected service tax @ 5% from the passengers was contested by the learned Counsel for the appellant stating that no such statement was given by Shri Shyam Lal Kabra. We find that this is correct that Shri Shyam Lal Kabra has not stated that he has collected 5% service tax from the passengers. However, this fact was stated by Shri Satya Narayan Sharma in his statement that from the fare collected from the passengers, they are deducting 5% as service tax. We find that the statement of Shri Shyam Lal Kabra and statement of Shri Satya Narayari Sharma are contrary to each other as far as collection of service tax is concerned. The learned counsel for the appellant has argued that statement of Shri Satya Naiayan Sharma was not supplied to them. When we had called for the original records, the records were also not produced before us. In the circumstances, it is not possible for us to come to correct conclusion whether the statement of Shri Satya Narayan Shaima was supplied to the appellants or not. Therefore, the case requires to be remanded to the Commissioner (Appeals) to examine this aspect as he has given incorrect finding that Shri Shyam Lal Kabra had admitted that they had collected the service tax. We therefore, set aside the order of the commissioner (Appeals) and remand the case to him to re-examine the records and pass a fresh order in accordance with law after hearing the appellants. Both the appeals are disposed of accordingly.