Disposed

Tour Operators & Travel Agent Association of Gujarat v. Union of India

Gujarat HC15 Oct 2004SCA/5059/2004

Case brief

AI extract

What is this about?

The Bench disposed of connection cases filed by tour operators challenging the service tax subjection of travel agents. Directing the Central Board of Excise and Customs to decide a pending representation by November 30, 2004, the court held that pending this decision, the oral assurance given by the government Standing Counsel to refrain from coercive action remains in force.

What did the court decide?

Direction to respondent no. 1-A to decide the representation dated 27.04.04 by 30.11.2004 and affirmation of the standing counsel's assurance against coercive action.

Tour Operators & Travel Agent Association of Gujarat Vs… — Banking and Recovery | Gujarat HC (2004)

¶1

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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 SPECIAL CIVIL APPLICATION No 5059 of 2004
 with
 SPECIAL CIVIL APPLICATION No 12980 of 2004
 to

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 SPECIAL CIVIL APPLICATION No 13019 of 2004

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 For Approval and Signature:

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HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------TOUR OPERATORS & TRAVEL AGENT ASSOCIATION OF GUJARAT Versus UNION OF INDIA -------------------------------------------------------------Appearance: 1. Special Civil Application No. 5059 of 2004 MR PARESH M DAVE for Petitioner No. 1 MS DHARMISHTA RAVAL for Respondent No. 1 MR JITENDRA MALKAN for Respondent No. 1 NOTICE SERVED BY DS for Respondent No. 1/A-9 2. Special Civil Application No. 12980 of 2004 MR PARESH M DAVE for Petitioner No. 1 MR JITENDRA MALKAN for Respondent No. 1

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 --------------------------------------------------------------

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 CORAM : HON'BLE MR.JUSTICE B.J.SHETHNA

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 HON'BLE MR.JUSTICE SHARAD D.DAVE

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 Date of decision: 15/10/2004

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COMMON ORAL JUDGEMENT
 (Per : HON'BLE MR.JUSTICE B.J.SHETHNA)
 #. All these matters are disposed of by this common
 order. Initially, only one petition i.e. Special Civil
 Application No.5059 of 2004 was filed by the Tour
 Operators and Travel Agents Association of Gujarat before
 this court under Article 226 of the Constitution of India
 praying that a writ of prohibition or any other
 appropriate writ, direction or order be issued to the
 respondents permanently prohibiting them and their
 servants and agents from taking any action against its
 members i.e. travel agents under the Finance Act, 1994
 and they may be permanently prohibited from treating the
 the travel agents as tour operators as defined under
 Section 65(52) of the Finance Act, 1994. By way of
 interim relief, it was prayed that pending hearing and
 final disposal of the petition, the Central Excise
 authorities functioning under respondent nos. 2 to 9 be
 restrained from taking any action against its members
 travel agents under the Finance Act and the Service Tax
 Rules and they may be further restrained from treating
 them as tour operators as defined under Section 65(52) of
 the Finance Act, 1994.

¶11

 #. When Special Civil Application No.5059 of 2004 was
 placed for the first time for admission before another
 Division Bench of this Court, following order was passed:

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"Leave to add Central Board of Excise and Customs
 as respondent no. 1-A.

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 Heard Mr.Paresh Dave, learned counsel for the
 petitioner.

¶14

 Mr.Dave submits that the view being taken by the
 respondents, on the basis of the clarification
 issued by Ministry of Finance in April 2000,
 which is also to be found in one such Trade
 Notice (Trade Notice No. 1/2000 dated 27.4.2000
 issued by Pune I Commissionerate, at Annexure G
 to the petition) goes beyond the definition of
 "Tour Operators" as shown in section 65(52) of
 Finance Act, 1994 with effect from 1.4.2000 which

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 reads as under :

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 "Tour operator means any person engaged in the
 business of operating tours in a tourist vehicle
 covered by a permission granted under the Motor
 Vehicles Act, 1988 (59 of 1988) or the Rules made
 thereunder."

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 Mr.Dave submits that this definition does not
 include or cover the travel agents working as
 commission agents for booking hotel rooms or for
 booking a taxi. He submits that the person who
 actually provides taxi service is covered by
 service tax net but not the travel agents who
 merely render services as commission agents.

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 3. Notice returnable on 5.7.2004.

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 It is clarified that pendency of this petition
 does not preclude the petitioner from making a
 representation to the Union of India in the
 Ministry of Finance and to the Central Board of
 Excise and Customs on the subject matter of this
 petition.

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 If such a presentation is made within two weeks

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 from today, it shall be decided by respondent
 Nos. 1 and 1-A within two months from the date of
 receipt of the same.

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 4. Ms.D.N.Raval,learned Senior Standing Counsel
 for Central Government waives service of notice
 on behalf of respondent no. 1.

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 D.S. is permitted on rest of the respondents.

¶24

 #. Though a brief speaking order was passed by the
 Division Bench of this Court, while issuing notice, no
 interim orders were passed because of the statement made
 by Ms.D.N.Raval, learned Standing Counsel appearing for
 the respondent who had waived notice for respondent no.1
 that during the pendency of the representation, no
 coercive action would be taken against the members of the
 association. The said statement has continued till
 today, in spite of the change in the guards. Mr.Dave
 said that even after change in guards, the respondents
 have restrained themselves from taking any coercive
 measures against the petitioner - association and its
 members. This could hardly be objected by Mr.Malkan,
 learned Standing Counsel for the respondent on facts of
 this case.

¶25

 #. In pursuance of the order of notice dated 23.04.2004,
 a detailed representation dated 27.04.2004 was made to
 the Central Board of Excise and Customs, Ministry of
 Finance, Department of Revenue, New Delhi as stated at
 the bar by learned counsel Shri Dave for the petitioner
 association. Unfortunately, the said representation is
 yet not decided by the newly added respondent no. 1-A
 within two months from the date of the receipt as ordered
 by the Division Bench of this Court on 23.04.2004.

¶26

 #. It may be stated that when this petition was placed
 before this court on 27.09.2004, learned counsel Shri
 Paresh Dave for the petitioner - association prayed for
 time for filing separate petitions for each member of the
 association and accordingly aforesaid petitions being
 Special Civil Application Nos. 12980 to 13019 of 2004
 have been filed by the members of the association. While
 adjourning the matter on 07.10.2004, learned counsel Shri
 Malkan for the respondent, was asked to take necessary
 instructions in the matter as to whether the members of
 the petitioner - association were to be treated as
 covered under the definition of "tour operators" for the
 period between 01.04.2000 to August 2004 ? Thereafter,
 on 7th once again the matter was adjourned on the request
 of Shri Malkan.

¶27

 #. Today, Mr.Malkan has stated that the detailed reply
 affidavit is already filed in main Special Civil
 Application No. 5059 of 2004, but it was brought to our
 notice by Mr.Dave for the petitioner - association that
 the said reply affidavit was filed way back in 24.06.2004
 and thereafter on 27.09.2004, this court passed an order
 calling upon Mr.Malkan to take necessary instructions in
 the matter on the above issue. However, Mr.Malkan has no
 instructions in the matter so far on the aforesaid issue.

¶28

 #. Having heard learned counsel for the parties and
 having perused the earlier orders passed by previous
 Division Bench of this court as well as this Bench, we
 are of the considered opinion that when the petitioner
 association has already made a detailed representation
 dated 27.04.2004 before respondent no. 1-A, then there
 is no need to keep all these matters alive. Though
 directed by the Division Bench of this Court on
 23.04.2004, unfortunately, respondent no. 1-A has not
 decided the representation so far though the period of
 two months is over since long. The petitioners are
 already protected on the oral statement made at the bar
 by Ms.D.N.Raval, Standing Counsel and because of her
 statement, the respondents have not so far proceeded

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 against the petitioners.

¶30

 #. Under the circumstances, all these petitions are
 disposed of at this stage with a direction to the
 respondent no.1-A to decide the representation dated
 27.04.04 as early as possible preferably on or before
 30.11.2004 if the same is not decided so far. Till the
 representation is decided, the oral statement made at the
 bar by the learned Standing Counsel Ms.D.N.Patel for the
 respondent - Union of India on 23.04.2004 shall remain in
 force.

¶31

 ����( B.J.SHETHNA, J )

¶32

 ����( SHARAD D DAVE, J )

¶33

 srilatha

Tour Operators & Travel Agent Association of Gujarat v. Union of India

Case brief

What is this about?

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Tour Operators & Travel Agent Association of Gujarat v. Union of India

Case brief

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