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2024 (1) TMI 86 - CESTAT NEW DELHIBurden/onus to prove that the service was provided - Demand of service tax - appellant provided Cargo Handling Agency Services or not - burden/onus to prove on Revenue - Revenue failed to discharge its burden to prove - appellant is an individual business and not an agency - HELD THAT:- If Revenue is alleging that the appellant had provided Cargo Handling Agency Services during the relevant period, it is for the Revenue to establish that the appellant had indeed provided that services. All that is established by the Revenue is that the appellant had received certain sum from M/s. Bajrang Metallics Pvt. Ltd., which fact the appellant does not dispute. Both the lower authorities have erred in concluding that the appellant had provided Cargo Handling Agency Services during the relevant period without establishing it. Instead, they wrongly confirmed the demand on the ground that the appellant could not establish that it had not provided this service. The onus of proving that a taxable service has been rendered when issuing a SCN rests on the Revenue and not on the assessee. No evidence has been adduced by the Revenue that this service was rendered. The appellant is an individual and not an agency and hence was squarely covered by the CBEC’s letter No. B11/1/2002-TRU dated 1.8.2002. Unless it is established by the Revenue that the appellant is an agency and that it had provided Cargo Handling Agency Service, no demand can be confirmed. There is no evidence to the effect in the impugned order. The impugned order is set aside - Appeal allowed.
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