9911796707
TMI Blog2008 (5) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ident and Shri Rakesh Kumar, Member (T) Shri A. K. Madan, Advocate, for the Appellant. Shri A. K. Dixit Advocate, for the Respondent. [Order per : Justice S. N. Jha, President]. - This appeal has come up for hearing on the point of stay but after hearing for some time it appeared to us that the main appeal itself may finally be disposed of and we accordingly heard the parties. 2. The appeal by the Revenue is directed against the order of Commissioner of Central Excise (Appeals) setting aside the order-in-original of the Assistant Commissioner and allowing the appeal of the respondent. The respondent is a recipient of 'goods transport agency' service. The dispute relates to availment of the benefit of abatement on the gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "…..a declaration by the goods transport agency in the consignment note issue, to the 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-Service tax has been taken by them may suffice for the purpose of availment of abatement by the person liable to pay service tax". The respondent produced photocopies of the so-called declaration purportedly by the transporters on their letterheads on behalf of the concerned transport agency, claiming the benefit of abatement. The Assistant Commissioner found that the declarations were photocopies and they did not tally with another set of photocopies of similar declarations filed at the time of hearing. He con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand, learned Commissioner (Appeals) gave quietus to the controversy which was not correct. We are not able to appreciate the use of expression "until proved otherwise" in the context of the present case. The onus of proof for claiming abatement is clearly on the assessee and not on the Revenue. We have come across cases where goods were allegedly transported by scooters, motor cycles, vans, jeeps etc. and benefit claimed. Whether actual transportation took place by the concerned vehicles has to be proved by the respondent and the same has to be verified not by taking the words of the transporters to be correct on their face value but by cross-checking from other reliable sources and agencies. 6. In these premises, we set aside the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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