IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 C.E.Appeal.No. 15 of 2008() ------------------------------------- FO.1016/2007 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE .................... APPELLANT (S): -------------------- THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CALICUT COMMISSIONERATE, C.R.BUILDING, MANANCHIRA, CALICUT. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE RESPONDENT(S): ------------------------- M/S.SHABEER TRAVELS, DOOR NO.IV/93-1, DAPUTTY BUILDING, JANATHA BAZAR, KONDOTTY, MALAPPURAM. ADV. SRI.C.S.GOPALAKRISHNAN NAIR THIS CENTRAL EXICISE APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss C.N.Ramachandran Nair & P.S.Gopinathan, JJ. ================================================== C.E.Appeal No.15 of 2008 ================================================== Dated this the 23rd day of March, 2010. JUDGMENT Ramachandran Nair, J. 1.Heard the standing counsel appearing for the appellant and the counsel appearing for the respondent. 2.The order under challenge is one issued by CESTAT holding that the respondent is engaged in travel agency business, which was brought under service tax net with effect from 10.9.2004. The respondent can be assessed for the service charges under the category, travel agency service. However, according to the appellant, the respondent is engaged in business auxiliary service falling under Section 65(105)(zzb) of the Finance Act, 1994 with effect from 1.7.2005 and CEA15/08 -:2:- so much so, demand of tax under this head is tenable. We are unable to uphold the appellant's contention, because, admittedly, the respondent is engaged in booking tickets and making arrangements for travel of passengers under agreement with a well-known travel agency, M/s.Akbar Travels. For services rendered, respondent is paid commission, mainly by Akbar Travels. The Tribunal, on facts, found that the service rendered by the respondent is essentially travel agency service as agents of the main travel agency, M/s.Akbar Travels. In the eye of the Tribunal, the respondent assessee is engaged in travel agency business. We do not think that the respondent could be assessed under business auxiliary service. Counsel for the respondent also submitted that the respondent has taken the issues for payment of tax for the travel agency service and in fact, excess tax paid is refunded CEA15/08 -:3:- by the Department. In the circumstances, we do not find any merit in the appeal by the Department against the order of the CESTAT. Consequently, we dismiss the appeal. However, it is for the appellant to assess and levy tax for the travel agency service carried on by the respondent as well as by M/s.Akbar Travels. However, the standing counsel submitted that there is nothing on record to prove the claim of the respondent. Neither the respondent has taken any registration nor remitting any tax. It is only the failure on the part of the appellant because, the Tribunal had given freedom to the appellant to recover tax from the respondent for the travel agency service. C.N.Ramachandran Nair, Judge. sl. P.S.Gopinathan, Judge.