Service tax liability under Section 73 was held unsustainable for goods transport operator service where Section 71A governed return filing.

Section 73 of the Finance Act, 1994 was stated to be inapplicable to goods transport operator service liabilities for the relevant period where the persons concerned were required to file returns only under Section 71A. A show cause notice issued under Section 73 for such liability was therefore described as not maintainable, and the demand could not be sustained in light of the binding Supreme Court position. Section 71A was also said not to expand Section 73 liability or validate the demand and related penalty. On that stated basis, the service tax demand and equal penalty were set aside in favour of the assessee.

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Issues: (i) Whether the demand of service tax on goods transport operator service could be sustained under Section 73 of the Finance Act, 1994 for the relevant period. (ii) Whether Section 71A of the Finance Act, 2003 altered the liability so as to validate the demand and related penalty.

Issue (i): Whether the demand of service tax on goods transport operator service could be sustained under Section 73 of the Finance Act, 1994 for the relevant period.

Analysis: The order under challenge had proceeded contrary to the binding Supreme Court view on the same issue. The applicable principle was that Section 73, even as amended, applied only where the person was liable to file a return under Section 70, whereas the class of persons covered by Section 71A was not brought within Section 73. A show cause notice invoking Section 73 for such liability was therefore not maintainable.

Conclusion: The demand under Section 73 of the Finance Act, 1994 was not sustainable and was held against the Revenue.

Issue (ii): Whether Section 71A of the Finance Act, 2003 altered the liability so as to validate the demand and related penalty.

Analysis: Section 71A was relied upon to contend that recipients of goods transport operator service for the relevant period were required to file a return and pay tax. That contention was rejected because the statutory scheme did not extend Section 73 liability to that class of persons merely by reason of Section 71A, and the adjudicating authority could not disregard the binding legal position on the same question.

Conclusion: Section 71A of the Finance Act, 2003 did not validate the demand or the penalty, and this issue was decided in favour of the Assessee.

Final Conclusion: The service tax demand and equal penalty were set aside, and the assessee succeeded on the merits of the dispute.

Ratio Decidendi: A demand under Section 73 of the Finance Act, 1994 is not maintainable against a class of persons whose return-filing obligation arises only under Section 71A, and an authority cannot uphold a contrary demand in disregard of binding Supreme Court law on the same issue.

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