2008 (2) TMI 200 - AT - Service Tax

Appellants had received Goods Transport Operators Service (GTO service) during the period from 16.11.1997 to 1.6.1998 but had not filed service tax returns or paid service tax SCN issued - held that a person receiving taxable service from GTO/C F Agent was not covered by the provisions of Section 70 73 of the Finance Act, 1994 and that any demand notice issued to such a person by the department under Section 73 was not maintainable - demand penalties are set aside

Summary

Issues Involved:
1. Non-payment of service tax on Goods Transport Operator's service.
2. Dispute regarding the liability of recipients of Goods Transport Operator's service to pay service tax.
3. Applicability of Section 73 and Section 71A of the Finance Act, 1994.
4. Interpretation of previous judicial decisions and their impact on the present case.

Issue 1: Non-payment of service tax on Goods Transport Operator's service:
The appellants had received Goods Transport Operator's service during a specific period but had not paid any service tax under the Finance Act, 1994. A show-cause notice was issued by the department for recovery of service tax with interest. The original authority dropped the proceedings, but the Commissioner set aside this decision and demanded the service tax from the assessee, leading to the present appeal.

Issue 2: Dispute regarding the liability of recipients of Goods Transport Operator's service to pay service tax:
The key argument presented was that the issue had already been settled in favor of the appellants by the Supreme Court's decision in a specific case and a line of Tribunal decisions. The Tribunal considered various amendments to the Finance Act, including the insertion of Section 71A, which imposed a liability on recipients of Goods Transport Operator's service to file returns. The Tribunal's view was that the class of persons falling under Section 71A did not come under Section 73, making show-cause notices under Section 73 for recovery of service tax from such persons not maintainable.

Issue 3: Applicability of Section 73 and Section 71A of the Finance Act, 1994:
The Tribunal analyzed the amendments brought by Parliament, particularly under the Finance Act, 2000 and Finance Act, 2003, which introduced Section 71A. It was held that the amendments did not bring assessees like the appellants within the scope of Section 73, as per the Supreme Court's ruling in a specific case. The Tribunal emphasized that the amendments did not make recipients of Goods Transport Operator's service liable to pay service tax for the disputed period.

Issue 4: Interpretation of previous judicial decisions and their impact on the present case:
The Tribunal considered various decisions, including those of the Supreme Court and co-ordinate benches, to determine the legal position regarding the liability of recipients of Goods Transport Operator's service to pay service tax. The Tribunal highlighted that the view taken by the Supreme Court in a particular case had not been contradicted by subsequent judgments. The Tribunal also rejected the argument that the view in the specific Supreme Court case had not attained finality due to an appeal filed by the Commissioner, emphasizing that the resistance to the binding effect of the Supreme Court's judgment was not valid.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal, following the precedent set by the Supreme Court and previous Tribunal decisions.