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Issues: (i) whether the appellants were entitled to abatement under Notification No. 32/2004 in relation to GTA services; (ii) whether service tax could be demanded from the service receiver when there was no evidence that the service provider had failed to pay tax.
Issue (i): whether the appellants were entitled to abatement under Notification No. 32/2004 in relation to GTA services.
Analysis: The record indicated that the denial of abatement rested on the absence of proof that the service providers had not taken CENVAT credit. The order accepted the appellant's position that where the service provider was unregistered, the question of availment of credit did not arise, and relied on the principle that the receiver need not adduce such proof in those circumstances.
Conclusion: The appellants made out a prima facie case for abatement.
Issue (ii): whether service tax could be demanded from the service receiver when there was no evidence that the service provider had failed to pay tax.
Analysis: The demand was founded only on the premise that the receiver was liable under the notification. The order held that for the same services there could not be double recovery, and that in the absence of material showing non-payment by the service provider, the receiver could not be compelled to pay again.
Conclusion: The demand against the receiver could not be sustained at the stay stage.
Final Conclusion: Complete waiver of pre-deposit was granted and recovery was stayed for 180 days.
Ratio Decidendi: Where the available material does not show that tax was unpaid by the service provider, a service receiver cannot be subjected to a second demand for the same service, and a prima facie entitlement to relief follows for stay purposes.
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