ORDER
P. Karthikeyan, Member (T)
1. In this application filed by M/s. The Arasan Aluminium Industries Pvt. Ltd., Virudhunagar, the appellants have sought waiver of predeposit and stay of recovery of an amount of Rs. 1,77,226/- and the interest due thereon demanded from them. The appellants had taken cenvat credit of service tax to the tune of Rs. 1,77,226/- paid on Goods Transport Agency (GTA) service availed by them prior to 16.6.05 and utilized towards payment of duty on its final products such as Aluminium Powder, Aluminium Paste, Zinc Alloy and Copper Powder. As the credit utilized was found not admissible, the lower authorities found that the assessee had cleared the final products during February, May, June and August’05 without paying full duty due on the goods cleared. In the impugned order, the Commissioner (Appeals) found that Notification No. 28/05-CE(NT) dated 07/06/05 prescribed TR6 challans as the document evidencing payment of service tax to avail credit of tax paid on GTA service. This notification had come into force on 16/06/05. Therefore, the credit availed by the assessee on the TR6 challans issued prior to 16/06/05 was not admissible. On the basis of the above reasoning, he affirmed the demand made in the order of the original authority. The interest due is not quantified.
2. Moving the stay application, the Ld. Counsel for the appellants submits that the assessee was eligible for credit of service tax paid towards GTA service from the date that service came under the tax net ie. 01.01.05. Rule 2(1)(d) of Cenvat Credit Rules 2004 (CCR) was amended with effect from 16.06.05, notifying GTA service also among services eligible for credit on the strength of TR6 challans. Since the tax was eligible for credit from 1.1.05, the impugned credit could not be validly denied to them. The department has no case that the appellants did not pay the service tax, credit of which was availed or that the availment was not supported by valid duty paying documents, namely TR6 challans. He relies on the decision of the Tribunal in Commissioner of Central Excise, GOA v. Essel Pro-pack Ltd. reported in 2007 (8) STR 609 (Tri.-Mum.). In that decision, in a case of similar facts, the Tribunal had over-ruled the objection of the Revenue that TR6 challan was not valid duty paid document for taking credit prior to 16/06/05. He also cites the stay order of the Tribunal in Ramesh Steel Industries v. CCE, Raipur reported in 2007 (8) STR 388 (Tri.-Del.), wherein the tribunal had taken prima facie view that the appellants were eligible for cenvat credit of tax paid on GTA service prior to 16/06/05 on the strength of TR6 challans.
3. The Ld. SDR submits that though the tax paid on GTA service was eligible for credit, the documents on the strength of which credit could be availed were prescribed only under the notification No. 28/05-CE (NT), which came into effect from 16.06.05. Therefore, the credit availed on challans for payments earlier than 16.06.05 was not regular and demand of such credit and interest deserves to be sustained.
On careful consideration of the case records and submissions by both sides, I find that the appellants have made a prima facie case against the demand of service tax and interest due thereon. Therefore, pending examination of the dispute in depth after hearing the parties, predeposit of the tax demand is waived and the recovery of the same is stayed till the disposal of the appeal.
(Pronounced and dictated in the open Court)