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Sri Pandyan Travels, Represented by K. Devendran Vs. Commissioner of Central Excise, Service Tax Cell - Court Judgment

LegalCrystal Citation
SubjectService Tax
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 46419 of 2002 and W.P.M.P. No. 67527 of 2002 and W.V.M.P. No. 1242 of 2003
Judge
Reported in(2004)186CTR(Mad)677; 2004(91)ECC369; 2003LC654(Madras); 2004(163)ELT409(Mad); [2004]268ITR391(Mad); 2006[3]STR151; [2007]7STT159
ActsConstitution of India - Article 226
AppellantSri Pandyan Travels, Represented by K. Devendran
RespondentCommissioner of Central Excise, Service Tax Cell
Appellant AdvocateRadha Gopalan, Adv.
Respondent AdvocateK. Veeraraghavan, Senior Central Govt. Standing counsel
DispositionWrit petition dismissed
Cases ReferredAssn. of T.N. v. Union of India
Excerpt:
service tax - tour operator--the contract carriage vehicles are also covered under service tax. the petitioner is covered under the definition of 'tour operator' and is doing the said business. the respondent is fully justified in issuing the impugned communication to the petitioner for registration and paying service tax. the petitioner is liable to pay the service tax--finance act, 1994--section 65(52) r/w sections 2(43), 82 and 88(9) of the motor vehicles act. - constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making..........in the judgment that the authority would decide as to whether the petitioners' vehicles are the tourist vehicles as contemplated under section 2(43) of the motor vehicles act. when the petitioner has received notice from the respondent dated 30-9-2002, he sent a reply enclosing the judgment of this court dated 2-10-2002 stating that they are not having tourist vehicles as contemplated in the judgment and also produced the registration certificate of the vehicles to prove that the petitioner is not having tourist vehicles and they are having only ordinary contract carriages. in spite of the said reply, the respondent herein has requested the petitioner to register themselves and pay service tax by their order dated 18-10-2002. aggrieved by the said order, having no other remedy, the.....
Judgment:
ORDER

P. Sathasivam, J.

1. By consent of both parties main writ petition itself is taken up for disposal. Questioning the order of the Commissioner of Central Excise, Service Tax Cell, Chennai II, Chennai-35, made in C.No.IV/16/368/2001-STC dated 18-10-2002, directing the petitioner to register and pay service tax, Sri Pandyan Travels has filed the above writ petition to quash the same on various grounds.

2. The case of the petitioner is briefly stated hereunder:-

The petitioner is a contract carriage operator, operating contract carriages, permits of which are issued by the State Transport Authority, Chennai. When the respondent wanted to impose service tax in respect of the petitioner, they filed a writ petition before this Court and the same was disposed of by a Division Bench along with several other writ petitions with a direction to the petitioners to raise their objections with the concerned authorities issued notices. It is further stated in the judgment that the authority would decide as to whether the petitioners' vehicles are the tourist vehicles as contemplated under section 2(43) of the Motor Vehicles Act. When the petitioner has received notice from the respondent dated 30-9-2002, he sent a reply enclosing the judgment of this Court dated 2-10-2002 stating that they are not having tourist vehicles as contemplated in the judgment and also produced the Registration Certificate of the vehicles to prove that the petitioner is not having tourist vehicles and they are having only ordinary contract carriages. In spite of the said reply, the respondent herein has requested the petitioner to register themselves and pay service tax by their order dated 18-10-2002. Aggrieved by the said order, having no other remedy, the petitioner has filed the present writ petition. It is further stated that requesting the petitioner to register and pay service taxes is illegal, arbitrary since they are not operating any tourist vehicle as prescribed under Section 2(43) of the Motor vehicles Act and proof of them have been produced before the concerned authority. It is also stated that as long as the petitioner's vehicles are not tourist vehicle as prescribed under Section 2(43) of the Motor Vehicles Act, the question of service tax does not apply.

3. Pursuant to the notice, the respondent filed a counter affidavit disputing various averments made by the petitioner. It is stated that the service tax on tour operators was introduced with effect from 1-9-97 from 18-7-98 to 31-3-2000, there was exemption from payment of service tax by the tour operators. In the meanwhile, some of the tour operators including omni bus operators obtained an interim stay and final order was delivered on 30-4-2001 by this Court, upholding the constitution validity of service tax on tour operators. Based on the judgment, letters were sent to all the tour operators including omni bus operators to get themselves registered and pay service tax. One among them was the petitioner herein who was requested to get themselves registered as tour operator in letter C.No.IV/16/368/2001-STC (III) dated 6-8-2002. In the light of the categorical conclusion arrived at by the Division Bench in Writ Petition No. 20 of 1998 etc., batch and in view of the statutory provision, the vehicle used in a tour is a tourist vehicle, since the vehicle of the petitioner is a tourist vehicle, they are covered by Section 65 of the Finance Act. As per the said judgment, the contract carriage vehicles are also covered under service tax as per Section 65(52) of the Finance Act, 1994. Since the petitioner has been doing his business from 1997, they have to furnish the particulars of tours conducted from 1-9-97 to till date excluding the period from 1-7-98 to 31-3-2000. Inasmuch as the issue was already settled as per the decision of this Court dated 30-4-2001 in Writ Petition No. 20 of 98, there is no merit in the claim of the petitioner and the writ petition is liable to be dismissed.

4. Heard Mrs. Radha Gopalan, learned counsel for the petitioner and Mr. K. Veeraraghavan, learned Senior Central Government Standing counsel for the respondent.

5. The only point for consideration in this writ petition is, whether the petitioner is a 'Tour Operator' as per the Finance Act, 1994 and as observed in the Division Bench decision in Secy. Federn. of Bus-operators Assn. of T.N. v. Union of India, reported in

6. It is not disputed that the questions such as contract carriage, stage carriage, tourist vehicle, as defined under the Motor Vehicles Act, 1988 and tour operator as per the Finance Act, 1994 have been elaborately considered in Secy. Federn. of Bus-operators Assn. of T.N. v. Union of India, reported in . In such a circumstance, it is unnecessary for me to refer those definitions, arguments advanced by both counsel. It is also not disputed that petitioner is a contract carriage operator, operating contract carriages for which permits are issued by the State Transport Authority, Chennai. When the respondent wanted to impose service tax in respect of the petitioner and others, the said action was challenged by way of writ petitions on the ground that it does not apply to contract carriages as the word used is only 'tourist vehicle'. After considering all the contentions relating to recovery of service tax on tour operators, the Division Bench dismissed all the writ petitions upholding the legislative competence as well as the merits and applicability of the provisions of the Finance Act to the stage carriage operators, contract carriage operators, cab/maxi cab operators except spare buses-vide para 36. Though Mrs. Radha Gopalan has argued that as per the Division Bench decision, the petitioner, who is a contract carriage operator, since their vehicle is not a tourist vehicle, the payment of service tax does not apply to the petitioner's case, in the light of the elaborate discussion by the Division Bench covering all the aspects, including the claim of the petitioner, I am unable to accept the said contention for the following reasons.

7. I shall refer the discussion relating to the question applicable to the case on hand. In para 36, the Division Bench has observed that 'spare buses may not be the 'tourist vehicles' within the meaning of section 2(43) of the Motor Vehicles Act and, therefore, they are not liable...' It is clear that only spare buses of the tour operators are exempted from the purview of the service tax net. It is also relevant to refer their conclusion in para 85:

'85....We now make it clear that all the writ petitions filed by the 'stage carriage operators', 'contract carriage operators', 'cab/maxi cab operators' and 'rent-a-cab scheme-operators' would be liable to be dismissed and are accordingly dismissed subject to the rider which we have spoken of in paragraph 36.'

8. The other conclusion/observation in para 41 is relevant:

'41.......We do not see as to how the cases of the holders of contract carriage permits would be in any manner different from the holders of the stage carriage permits and the owners of the spare buses thereunder. The same rationale would apply even to the contract carriage vehicles covered by the permit under Section 74 of the Motor Vehicles Act. In fact, the most of the petitioners, who are having the contract carriage, are having the permits under Section 88(9) of the Motor Vehicles Act read with Section 82, which are nothing but 'tourist permits', issued for the purpose of promoting the tourism and obviously issued to the tourist vehicles as contemplated under that section. Therefore, there will be no question of entertaining their objections and they will straightaway be covered under Section 65(52) of the Finance Act. Such petitions, where the permits are under Section 88(9) of the Motor Vehicles Act, would be straightaway liable to be dismissed and are dismissed as such.'

'Para 24.... A plain reading of the provisions of the Motor Vehicles Act says that any such vehicle which answers the description of the tourist vehicle under Rule 128 and which would run under a contract would become a tourist vehicle and once it becomes a tourist vehicle so long as it is being used under any permit under the Motor Vehicles Act, by a person who is engaged in the business of operating the tours then, the requirement of the Finance Act would be complete.'

Inasmuch as the petitioner is a contract carriage operator and not a stage carriage operator, the observation of the Division Bench in respect of 'spare buses of stage carriages' is not applicable. It is also relevant to refer once again the observation in para 41 '.....In fact, the most of the petitioners, who are having having the contract carriage, are having the permits under Section 88(9) of the Motor Vehicles Act read with section 82, which are nothing but tourist 'tourist permits' issued for the purpose of promoting the tourism and obviously issued to the tourist vehicles as contemplated under that section. Therefore, there will be no question of entertaining their objections and they will straightaway be covered under Section 65(52) of the Finance Act....'

9. In the light of the conclusion/observation of the Division Bench, I am of the view that as per Section 65(52) of the Finance Act and as interpreted by the Division Bench, the contract carriage vehicles are also covered under service tax. Since the petitioner is covered under the definition of 'tour operator' and doing the said business, the respondent is fully justified in issuing the impugned communication requesting the petitioner to register and pay service tax. I am also satisfied that the issue is already settled in view of the judgment of the Division Bench, referred to above and I hold that the petitioner herein is liable to pay the service tax.

10. In the light of what is stated above, there is no merit in the Writ Petition and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.


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