TMI Blog2011 (1) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... eight from their customers and Service Tax paid has not been charged, do not stand rebutted by the Revenue - no merit in the Revenue s appeal, hence rejected - ST/264/2008-Cus - ST/21/2011(PB) - Dated:- 19-1-2011 - Ms. Archana Wadhwa, Mr. M. Veeraiyan, JJ. Appeared for Appellant : Shri K.K. Jaiswal, SDR Per Archana Wadhwa: Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal. We have accordingly heard Sh. K.K. Jaiswal, ld. SDR for Revenue and none appeared for the respondent. 2. As per the facts on record the respondents were engaged in the manufacture of M.S. pipes falling under Chapter 73 of the Central Excise Tariff Act. They are registered under the category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions, I observe that Notification No. 32/2004-ST, supra confers a substantial benefit in that it provides for abatement to the extent of 75% of the gross amount charged for the service provided. The conditions for availing of the said benefit are that the Goods Transport Agency does not avail of the benefit under the Cenvat credit scheme or of that under Notiication No. 12/2003-ST supra. In the present case, the appellants inadvertently deposited Service Tax on 100% of the gross amount charged instead of on 25% during the period in question. Thereafter, they filed the impugned refund claim for the excess Service Tax so deposited. In other words, they opted for the benefit provided by the said exemption notification at a later date. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e five months in question has been deposited in the succeeding month. Thus the presumption of the tax burden having been passed on to the customers, contemplated under Sections 11B(1) and 12B of the Central Excise Act, 1944, cannot be raised in this case. The Hon ble High Court of Punjab Haryana at Chandigarh, while answering a reference in CCE, Chandigarh-I Vs. Modi Oil and General Mills (2007 (210) ELT 342 (P H) held that incidence of duty could not be transferred to the buyer after the date of clearance as duty had been paid on a subsequent date and the same is sufficient to rebut the presumption raised under Section 12B. The adjudicating authority has recorded a finding that, on examination of the bills/invoices raised by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the fact of filing declaration by the transporters that no Modvat credit stand availed by them does not stand disputed by the Revenue. In fact the original adjudicating authority has also held that the declaration stand filed. However, he has rejected the refund on the ground that such declarations were not on each of the invoice and were filed after the services were availed. We do not find any merits in the above reasoning of the original adjudicating authority. The Commissioner (Appeals) has correctly observed that by filing declaration, the basis of Notification No. 32/2004-ST dated 3.12.04 stands fully satisfied, in which case abatement to the extent of 75% of the gross amount charged was available to the assessee. 8. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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