- (1.) This is an Appeal under Section 83 of the Finance Act, 1999, read with Section 35-G of the Central Excise Act, arising from the order of the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as the 'Tribunal'), dated 25th August, 2008, raising following substantial questions of law: (1) Whether the Principal Tour Operator having paid service tax on the gross amount received from the foreigner tourists for providing Package tour charging service tax on such service would amount to taxing the same service tax and the Tribunal was justified in not deciding the said question of law which was specifically raised by the appellant and noted in the argument by the Tribunal? (2) Whether in view of the decision of Hon'ble Supreme Court reported in 2006 Vol (8) SCC page-33 the Tribunal was justified in not deciding the argument on merits which were specifically raised by the appellant, as mentioned in grounds no. 2 and 3 and recorded in paragraph 2 of the Tribunal order? (3) Whether Service tax is leviable on payments received by the appellant by way of reimbursement of expenses on actual basis? (4) Whether raising a demand of service tax on amounts received by the appellant from Principal Tour Operator (PTO) as reimbursement of actual expenses, amounts to taxing the same service twice inasmuch as PTO has already paid service tax on gross amount received by PTO on account of package tour, which includes amount of actual reimbursement? (5) Whether with regard to non taxability of reimbursement on actual basis having been decided by co-ordinate Benches of the Tribunal, the Tribunal was justified in taking a different view inspite of the decision of Malabar Management Services (P) Limited Vs. Commissioner of Service Tax, Chennai, having been specifically mentioned therein? (6) Whether the notice dated 19.10.2007, issued for the period 01.04.2002 to 31.3.2007 was clearly barred by limitation since extended period of limitation of five years is not applicable? (7) Whether even assuming without admitting that the extended period of five years is applicable, show cause notice having been admittedly issue on 19.10.2007, raising demand from 01-4-2002 to 31-3-2007, the notice was clearly barred by limitation in respect of period prior to five years being computed from 19-1--2007? (8) Whether the definition of Tour operators having been amended with effect from 10-09-2004, the same shall be applicable prospectively and no service tax shall be legally levied on the basis of amended definition for the period prior to 10-9-2004? (9) Whether the Circular cannot create tax liability and the Tribunal was not justified in relying upon the Circular dated 23-8-2007 issued after the disputed period? (10) Whether in view of decision in the case reported in 2007 (9) SCC 617 when there is conflicting decision of the Tribunal the extended period shall not be applicable and the Tribunal was not justified in over-looking the said decision, specifically in view of the decision of C0-ordinate Benches of the Tribunal about the tax ability of reimbursement expenses? (11) Whether failure of the appellant to avail CENVAT Credit as per Rule 3 of CENVAT Credit Rules in respect of service tax paid by Principal Tour Operators (PTO), would justify raising demand of service tax under section 73(1) and Section-68 of Finance Act, and the Tribunal was not justified in confirming imposition of penalty under Section 78 of the Finance Act?
(2.) Briefly stated, the facts giving rise to the present appeal are as follows: The appellant is a Tour Operator, entered into a contract with various Principal Tour Operators (hereinafter in short referred to as 'PTO'), mostly based in Delhi and Mumbai. It appears that the PTOs provide services of package tours to the foreign tourists and other tourists, who visit various cities and various tourist places in India. It is alleged that the package tour provided by the PTOs, includes transport services, alongwith supplementary services, like, Air and Railway Tickets, fooding and lodging, porterage services, monuments visit services, guide services, food services and general assistance services etc.
(3.) It is the contention of the appellant that the PTOs are under the obligation to pay the service tax for rendering such services and the service tax has been paid on such services. However, no evidence has been adduced by the appellant at any stage that on which turnover and how much services tax has been paid by the PTOs.;