ORDER
Jyoti Balasundaram, Vice-President
1. We have heard both sides on the application for waiver of pre-deposit of Service Tax of Rs. 18,76,459 (Cenvat Credit of Rs. 18,39,282 + Education Cess of Rs. 37,177/-) and penalty of Rs. 10,000/- imposed upon the applicant herein. The demand arises as a result of disallowing Cenvat credit taken on the strength of TR 6 challan which was not modvatable document for availing Cenvat credit during the period in dispute i.e. upto 15-6-2005 and TR-6 challan became a modvatable document only with the issue of Notification 28/2005-C.E. (NTR) (sic) (28/2005-C.E. (N.T.), dated 7-6-2005).
2. We find that in this case the Service Tax has not been paid by the goods transport operators, but the applicant who is the recipient, paid the Service tax and took credit and the Department’s case is that the invoice issued by the transporter is not document evidencing payment of duty and hence is not covered by Clause (e) of Sub-rule (1) of Rule 9 of Cenvat Credit Rules, 2004.
3. We find that a strong prima facie case for waiver has been made out in the light of Clause (f) of the explanation to Rule 9(1) of Service Tax Rules, 1994, (sic) (Cenvat Credit Rules, 2004) providing that credit can be taken on the challan issued by a provider of input service on or after the 10th day of September, 2004 as it is one of the eligible documents taking credit. Further, the decision of the Tribunal in the case of Birk Corporation Ltd. v. CCE, Jaipur 2007 (6) S.T.R. 247 (Tri. – Del.) prima facie covers the issue in dispute in favour of the applicants.
4. We, therefore, waive pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
(Dictated in Court)