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2014 (5) TMI 800 - AT - Service TaxAbatement under Notification No. 15/2004-ST and under Notification No. 1/2006-ST - Commercial and Industrial Construction services. - Revenue contends that assessee could not have availed abatement for some projects and at the same time could not pay full tax on other projects, availing the benefit of Cenvat credit on the latter type of projects - Held that:- The adjudicating authority has not stated any evidence to prove that the applicant used inputs or capital goods on which cenvat credit was taken, in projects for which abatement was claimed. Adjudicating authority has put the onus of proving the converse of this position on the applicant and held that such onus has not been discharged. Abatement can be extended with respect to each project for which conditions in the notification are satisfied rather than all projects of an assessee taken together. Further, the applicant provided the details of credit taken. Without providing any evidence to even suggest that credit was taken on inputs and capital goods used for projects on which abatement was claimed, tax demand confirmed by the impugned order cannot be prima facie sustained. That is to say demand based on the probability and not on records cannot prima facie be sustained. Therefore, we grant waiver of pre-deposit of adjudged dues for admission of appeal and stay its recovery till the disposal of the appeal - Stay granted.
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