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TMI Blog2023 (5) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... d on GTA and not on service receiver who is made liable to pay Service Tax. Only that they have to be a little vigilant in this regard that GTA s make such a declaration to make them eligible for the abatement. We observe that the Transporters have issued a certificate to the effect that they have not availed credit on capital goods or inputs, which was accepted by the original adjudicating authority, but rejected by the Revision Authority. The Appellant has produced certificates received from the transporters to the effect that no credit on capital goods or inputs was availed by them as required in terms of notification 35/2004-Service Tax dated 03.12.2004. The evidences submitted by the Appellant clearly indicate that they have fulfilled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling credit on the inputs and capital goods for providing the taxable service, as mentioned in Notification 35/2004 ST dated 03.12.2004. Accordingly, they filed a refund claim for an amount of Rs.1,29,922/- paid by them in excess. The refund was sanctioned by the original adjudicating authority vide Order-in-Original dated 22.12.2006. The Commissioner of Central Excise and Service Tax, Patna reviewed the said Order under Section 84 of the Finance Act, 1994 and passed a Revision Order dated 28.10.2009, rejecting the revised refund claim of Rs.1,21,238/- and ordered the original authority to recover the erroneous refund sanctioned. Aggrieved against the impugned Revision Order, the Appellant filed the present appeal. 2. In their submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the original authority has not made any observation on unjust enrichment. He cited the decision of the Tribunal in the case of M.s Shiv Naresh Sports Pvt Ltd Vs Commissioner of Service Tax, Delhi III, in support of his contention that no refund was admissible without examining the ground of unjust enrichment and limitation. 4. Heard both sides and perused the appeal records. 5. We observe that the refund has already been sanctioned to the Appellant after examining their eligibility. However, the while passing the Revision Order, the Commissioner has raised some grounds of objection based on which the refund was ineligible, according to him. The ground raised by the Commissioner in the Revision Order is furnished below: 3. We Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignee is liable to pay Service Tax in respect of transport of goods by road and wish to avail the abatement provided under Notification 35/2004 dated 03.12.2004, they must ensure that the following conditions have been satisfied. (a) The invoice, bill or challan issued by goods transport agency shall include details of consignment note as prescribed under Rule 4A of said Rules. (b) The goods transport agency must issue a serially numbered consignment notes containing details as prescribed under Rule 4B of said Rules. (c) The consignment notes must carry a declaration made by goods transport agency to the effect that Cenvat Credit on input, capital goods or input service or benefit under Notification No.12/03-ST has not been availed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on a value of 25% of the freight paid to the transporter. The benefit of Notification No.32/2004 was available subject to produced the declarations from their transporters. However, when the matter was before the Commissioner (Appeals), the respondents produced the declarations. Taking note of this development, the Commissioner (Appeals) has allowed the benefit of Notification No.32/2004. The condition of the notification has been fulfilled substantially though belatedly. No valid grounds have been adduced to interfere with the findings and reasoning adopted by the Commissioner (Appeals). 9. We observe that the above said decision is squarely applicable to the present case on hand. The Appellant has produced certificates received from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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