2024 (1) TMI 86 - AT - Service Tax

Burden/onus to prove that the service was provided - Demand of service tax - appellant provided Cargo Handling Agency Services or not - burden/onus to prove on Revenue - Revenue failed to discharge its burden to prove - appellant is an individual business and not an agency - HELD THAT - If Revenue is alleging that the appellant had provided Cargo Handling Agency Services during the relevant period, it is for the Revenue to establish that the appellant had indeed provided that services. All that is established by the Revenue is that the appellant had received certain sum from M/s. Bajrang Metallics Pvt. Ltd., which fact the appellant does not dispute. Both the lower authorities have erred in concluding that the appellant had provided Cargo Handling Agency Services during the relevant period without establishing it. Instead, they wrongly confirmed the demand on the ground that the appellant could not establish that it had not provided this service. The onus of proving that a taxable service has been rendered when issuing a SCN rests on the Revenue and not on the assessee. No evidence has been adduced by the Revenue that this service was rendered. The appellant is an individual and not an agency and hence was squarely covered by the CBEC s letter No. B11/1/2002-TRU dated 1.8.2002. Unless it is established by the Revenue that the appellant is an agency and that it had provided Cargo Handling Agency Service, no demand can be confirmed. There is no evidence to the effect in the impugned order. The impugned order is set aside - Appeal allowed.

Summary

Issues Involved:
The issues involved in the judgment are the rejection of appeal by the Commissioner (Appeals) and confirmation of demand of service tax, interest, and penalties by the Assistant Commissioner.

Issue 1: Rejection of Appeal and Confirmation of Demand:
The appellant challenged the Impugned order dated 26.9.2017 passed by the Commissioner (Appeals) which rejected the appeal and upheld the Order in Original dated 20.2.2017 passed by the Assistant Commissioner. The Assistant Commissioner confirmed the demand of service tax of Rs. 89,340/- under section 73 of the Finance Act, 1994 along with interest under section 75 and imposed penalties under sections 77 and 78 on the appellant.

Details:
The audit team of the department visited M/s. Bajrang Metallic Pvt. Ltd. and concluded that the appellant provided "Cargo Handling Agency Service" during a specific period. The appellant disputed this claim, stating they only provided manpower supply services and never engaged in Cargo Handling Services. The appellant argued that service tax could not be levied on them as they were an individual business, not an agency, citing a CBEC letter. The appellant also contended that no evidence proved the provision of Cargo Handling Agency Service. The Assistant Commissioner and the Commissioner (Appeals) upheld the demand without establishing that the appellant provided the specific service. The Tribunal ruled in favor of the appellant, stating the Revenue failed to prove the provision of the service and that the appellant, being an individual, was exempt from the service tax.

Final Decision:
The Tribunal allowed the appeal, setting aside the impugned order and providing consequential relief to the appellant.