TMI Blog2008 (8) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 25-8-2008 - Dr. S.L. Peeran, Member (Judicial) and Shri T.K. Jayaraman, Member (Technical) (Final Order No. 1108/2008 dt. 25.8.2008 certified on 13.10.2008 in Appeal No. ST/339/2007) Shri MSV Prasad, Adv. for Appellant. Ms. Sudha Koka, SDR for Respondent. [Order per : T.K. Jayaraman, Member (Technical)] - This appeal has been filed against the Adjudication Order No. 15/2007 (VR) dated 17.05.2007 passed by the Commissioner of Central Excise Customs, Visakhapatnam-II Commissionerate. 2. Shri MSV Prasad, the learned Advocate, appeared on behalf of the appellants and Ms. Sudha Koka, the learned SDR for the Revenue. 3. We heard both sides. 4. The appellants M/s. Chandra Shipping and Trading Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Commissioner has given a finding at para 31 in page 50 that the assessee had shown certain nominal amount as service charges as value of taxable service in their ST-3 returns and that they had suppressed details of credits taken/utilized in respect of inputs services in their ST-3 returns filed and that the facts of actual value of taxable service provided and credit taken/utilized in respect of input services have come to light only during the course of audit by the audit party. It was stressed by the learned Consultant that this finding is factually incorrect, since the assessee had been filing ST-3 returns in the prescribed format showing the taxable value in terms of Board's Circular and had been filing Cenvat credit returns in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is binding on all field formations. He relied on the decision of Supreme Court in Ranadey Micronutrients reported in 1996 (16) RLT 501 (SC) = 1996 (87) ELT 19 (SC). It was also pleaded that the Board's Circular does not mention about requirement of any evidence to show to the department regarding the reimbursements. It was stated that if they are not reimbursable amounts why should the importer pay them to the CHA. There is no evidence that the reimbursements had not been received by the appellant. Moreover, the assessee had maintained detailed accounts of these expenses which were categorized and given to the audit party besides evidences of invoice raised and payments raised. The audit never questioned the correctness of the expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the credit was denied are extraneous to these rules which have to be interpret strictly as they are. Whether the importer has taken the credit or not is required to be verified by the department and the credit cannot be denied to the appellant who had actually paid the service tax on input services from out of their account current maintained with the input service provider. Credit cannot be denied on suspicion. It was also pleaded that in view of their two issues covered by merit in favour of the appellants, the penalty cannot be imposed. However, the learned Consultant stated that they are prepared to pay an amount of Rs. 51,384/- on extra amounts collected along with interest voluntarily. 7. The learned Departmental Representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax on input service are not sustainable. The appellants have stated that the service tax on input services have been paid from out of their own account maintained with the input service providers. These facts could have been verified by the Revenue. In the absence of verification, we have to give the benefit of doubt to the appellant. It is for the department to prove the allegations with solid evidence. The burden of proof is always on the department. In view of this above findings, we do not find that there is any suppression of facts, especially when the appellants had filed service tax returns and Cenvat tax returns regularly. Hence, we allow the appeal with consequential relief. The penalties are set aside. Only the demand for Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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