2010 (3) TMI 338

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....s service recipient during the period from March'08 to June'08. The Respondent paid service tax on the CTA on the gross amount, without any abatement while they were required to pay service tax only on the value equal to gross amount minus 75°I abatement. Since after payment of service tax on GTA service on gross amount, they had taken full Cenvat credit, the Department objected that since they were required to pay service tax only on the net amount after deducting 75% abatement and since they had paid higher amount of service tax on the gross amount, then Cenvat credit eligibility would be limited only to the amount of tax actually payable and they must reverse the excess amount of Cenvat credit. The Respondent accordingly reve....

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.... grounds of appeal and emphasised that the burden of proof that the incidence of service tax whose refund is sought by the respondent had not been passed on by them to their customers; that this burden cannot be treated as discharge just by production of Chartered Accountant's certificate; that the expenses on transportation of inputs alongwith service tax is part of the expenses incurred by the manufacturer towards manufacture of final product, which is realised by the manufacturer from the customers buying the final product; that since the service tax paid by them on the input service as per the provisions of Section 12B of the Central Excise Act, 1944 burden of proving that incidence and the tax had not been passed on to the customer....

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....)'s relying upon the Tribunal's judgment in the case of Birla Corpn. Ltd. v. CCE, Pune-1 reported in 2008 (231) E.L.T. 482 and M.R. Corporation v. CCE, Mumbai reported in 2007 (220) E.L.T. 257, wherein it was held that the certificate of Chartered Accountant should not be rejected summarily without any evidence to the contrary has rightly allowed the Respondent's appeal. 3. I have carefully considered the submissions from both the sides and perused the records. In this case, there is no dispute about the fact that initially the Respondent had paid the service tax on the gross amount without any abatement and subsequently when the Department insisted that they would be eligible for Cenvat credit of the service tax payable only....