TMI Blog2019 (3) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of limitation has rightly been invoked. Export of consignment or not - Held that:- On perusal of the proceeding before lower authority, it is seen that no such claim was made by the appellant. First time this issue has been raised in Tribunal. Even in the appeal before Tribunal, there is no assertion to the effect that they are ready to produce any documents. It is seen that the appellant are not denied that the part of the service provided by them are not related to export - In the instant case, the evidence of having provided service in respect of export is solely available with the appellant, thus the onus of establish, the fact is on the appellant. Since they have not done, so no benefit on this count can be allowed to the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Singh-1997 (94) ELT 289 (SC). He also relied on the decision of Hon ble Apex Court in the case of HMM Limited 1995 (76) ELT 497 (SC). He further pointed out that the appellant were in the nature of sub contractor and, therefore, the bonafide belief that the main contractor would have paid the service tax. He further concedes that they have no evidence that the main contractor had paid the service tax. He further argued that the activity of cargo handling is for the purpose of export cannot be charge to tax as it is not a taxable service. He pointed out that part of the activity pertains to export of cargo and therefore, not taxable service. He, however, could not produce any evidence of this specific assertion made before lower authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. 5. Ld. Counsel at this point pointed out that it is onus of establishing that the service provided by the appellant fell under the description of cargo handling service was on revenue. He argued that unless revenue was able to establish that the service provided by the appellant was not in relation to export, no SCN could have been issued to them. 6. We have gone through the rival submissions. We find that the appellant were undertaking the certain services. They have not denied that part of the services were cargo handling service. The appellant had not filed ST-3 return nor had they taken service tax registration. In these circumstances, it is apparent that the appellant had suppressed vital information from revenue. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no assertion to the effect that they are ready to produce any documents. It is seen that the appellant are not denied that the part of the service provided by them are not related to export. It is settled law that the onus of establishing of fact which is an exclusive knowledge of any person, is with that person. In the instant case, the evidence of having provided service in respect of export is solely available with the appellant, thus the onus of establish, the fact is on the appellant. Since they have not done, so no benefit on this count can be allowed to the appellant. 8. The next issue relates to the service tax demand on so called income earned from the hire charges. It is seen that impugned order relies on sample bills raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 80,250=00 9. It is seen that when the loader is provided on per hour basis it would amount to supply of loader on hire, whereas when the charges are made on per metric ton basis, these are the charges for the cargo handling. Consequently, the demand in respect of supply of terex loader and the provision of cargo handling service thereby needs to be revised so as to exclude the demand raised in respect of supply of terex loader on per hour basis treating the same as hiring of terex loader. 10. Consequently, the impugned order is set aside. The matter remanded to original adjudicating authority to re-calculate the demand as well as penalties o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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