TMI Blog2015 (10) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise v. Essel Propack Ltd., [2015 (5) TMI 529 - BOMBAY HIGH COURT]- first respondent is entitled to avail credit of service tax on the basis of TR-6 Challan. - Decided against Revenue. - C.M.A. Nos 3111 and 3112 of 2008 - - - Dated:- 31-7-2015 - Mr. R. Sudhakar And Ms. K.B.K. Vasuki, JJ For the Petitioner : Mr.A.P. Srinivas, Standing Counsel, for the Dept. For the Respondent : M/s. Raju K. Lukose ORDER R. Sudhakar, J Aggrieved by the order passed by the Tribunal allowing the assessee's appeal, the Department has filed the present appeals raising the following substantial question of law : Whether the 2nd respondent was correct in holding that the 1st respondent was entitled to av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax paid on the basis of TR 6 challans after 16.06.2005. Therefore, alleging that the assessee contravened Rule 3 and Rule 9 of Cenvat Credit Rules, 2004 by availing inadmissible Cenvat Credit on Goods Transport Agency on the documents other than those prescribed in Rule 9 of the Cenvant Credit Rules, 2004, a Show Cause Notice was issued. 3. The adjudicating authority, vide his order dated 30.11.2006, held that the assessee is not entitled to Cenvat Credit of ₹ 1,35,152/- and Education Cess to ₹ 2,649/- availed on the TR6 challans issued during the period 01.01.2005 to 15.06.2005 and the said amount is liable to be recovered from the assessee along with interest from the date of availaing of Credit till the date of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was introduced in the list of specified documents only with effect from 16-6-2005 by Notification No:28/2005-C.E. ( N.T.) dated 7.6.2005. 3. The Commissioner (Appeals) vide his impugned order has held the said documents to be proper for the purpose of availing credit by observing as under :- TR-6 challan is the most primary document evidencing payment of duty / tax. No doubt the TR-6 challan was not included in the list of specified documents. It was included by virtue of Notification No. 28/2005-CE (NT) dated 7-6-2005. I find that this is an inadvertent ommission, which was rectified by issuing the said Notification. This is so because any duty payment documents is related to, and based on TR-6 challan which is the source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssel Propack Ltd., AIT 2015 73-HC, wherein it was held as under: 7. On going through the CENVAT Credit Rules, 2004, we find that they do not prescribe any documents for availing of service tax credit during the disputed period in respect of the service tax paid on goods transport agency services. The appellant, in the present case, has nowhere contended which were the specified document for availing of such credit during the relevant time. If no documents have been mentioned, TR 6 challan has to be considered as a proper document, reflecting payment of such tax. Further, it is also not the case of the appellant that service tax was not paid by the respondents or that they were otherwise not entitled to such credit. 8. The Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Authorities below. In any event, the appellants are not entitled to rely upon Rule 9 to refuse the credit to the respondents, as Rule 9 is a procedural aspect which cannot deny the claim of the respondents to avail of such CENVAT Credit which they are, otherwise, admittedly, entitled to. The substantial question of law is answered accordingly. 8. In view of the law enunciated in the decision cited supra, which we concur with, we hold the first respondent is entitled to avail credit of service tax on the basis of TR-6 Challan. Accordingly, the question of law raised in these two appeals is answered in favour of the assessee and against the Department. Both these Civil Miscellaneous Appeals stand disposed of. There shall be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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