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TMI Blog2018 (2) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability on 25% of the total freight charges paid by them, availing benefit of notification No. 32/2004-ST, dated 03.12.2004. Department took the view that exemption would not be available to the appellant as there was no evidence to show that the conditions specified in the notification were fulfilled, hence show cause notices were issued to the appellant. 2. The original adjudicating authority extended the benefit of exemption to appellants, relying upon the undertaking letters given by transporters of the appellant stating that they have not availed credit of duty on inputs and capital goods used for providing such taxable service and also that they have not availed notification No. 12/2003-ST, dt. 20.06.2003. However, a revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that neither credit on inputs or capital goods used for provision of service has been taken nor the benefit of notification No. 12/2003-ST has been taken by them, would suffice for the purpose of availment of abatement by the person liable to pay service tax. 5. After introduction of the Finance Bill 2008, the CBEC vide letter No. 334/1/2008-TRU, dated 29.02.2008, took note of the difficulties in fulfilling the condition of non-availability of cenvat credit by the Service Provider, when the tax liability is paid by consignor or consignee who pays the freight. CBEC clarified that service tax would be required to be paid only on 25% of the freight, irrespective of the fact who pays the service tax, without requirement to prove non-ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo conditions for availing the said abatement. One is non-availment of CENVAT credit and second is the non-availment of benefit of notification no.12/2003-ST. 02. After the issuance of the circular, a large number of demand notices were dropped. However, now it has been brought to the notice of the Board that certain notices still remains undecided on the ground that the person liable to pay tax has not been able to produce evidences of non-availment of benefits of CENVAT Credit or benefit of notification No.12/2003-ST. In this regard, vide Para 31 of the circular No.B1/6/2005-TRU dated 27-7-05, it was clarified by the Board that such a declaration from the GTA on the consignment note issued, tothe effect that neither credit on input or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abatement will be available to the appellant without requirement of any specific endorsement on every consignment note, but merely on general declaration from GTA. In the instant case, from the facts it is seen that the appellants have obtained such undertaking letters from the concerned transporters. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008. Hence, the impugned order cannot sustain and will require to be set aside, which we hereby do. 8. In arriving at this decision, we also draw sustenance from the ratio of the following case laws: a) CCA Allahabad Vs. SangamStructurals Ltd. [2015(39)STR 1034(Tri.-Del.)] b) CCE Rajkot Vs. Advance Diesel Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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