9911796707
TMI Blog2011 (1) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the category of Goods Transport Agency and are paying Service Tax thereof. Services Tax on the freight paid, when inputs are received in the factory and the freight paid at the outward transportation of the finished goods to their customers was being paid by them. 3. The respondents filed a refund claim on 13.4.2006 for the Service Tax amounting to Rs.9,91,428/- on outward freight for the period April 2005 to August 2005 on the ground that the Service Tax required to be paid by them should have been calculated after availing the abatement of 75% of the value in terms of Notification No. 32/2004-ST. 4. The adjudicating authority rejected the refund claim on the ground that the respondent did not follow the conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification at a later date. The requisite declarations under the said notification were also furnished by them to the Department. I find that the Department has not challenged the fact that the Goods Transport Agencies have not availed of either of the above-said two benefits. It is settled law that, if the eligibility criterion is satisfied, a substantial right conferred by law cannot be taken away for procedural infringements. The Hon ble Supreme Court, in Compack (P) Ltd. Vs. CCE, Vadodara (2005 (189) ELT 3 (SC) held that, while interpreting an exemption notification, once the eligibility criteria are satisfied by the assessee, conditions are to be construed liberally in the case of Applicomp India Ltd. Vs. Commissioner of Customs, Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bills/invoices raised by the appellants and their ledger, it is proved beyond doubt that they have received the total billed amount and thus have passed on the tax incidence to their customers. Sample copies of the impugned invoices and the corresponding extracts of the appellants party wise ledger are on record. It is seen that, although the appellants have charged freight from their customers, the Service Tax payable thereon has not been charged. Thus, the above finding of the adjudicating authority is not based on fact but only on surmise. In cases of refund claim of duty which was paid subsequent to clearance of goods, the burden rests on the Department to establish that the claim was barred by unjust enrichment, as presumption under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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