1. The applicant filed this application for waiver of pre-deposit of tax of Rs. 6,75,545.00 and penalty.

2. The Ld. Advocate on behalf of the applicant submits that a show-cause notice dated 8-11-2004 was issued under section 73 of Finance Act, 1994 proposing demand of Service Tax for the period from 16-11-1997 to 2-6-1998 in respect of Service Tax for "Goods Transport Operators". He submits that the applicants are deemed to be a person come under section 71A of the Finance Act, 1994 and therefore, show-cause notice issued under section 73 is not maintainable. He relied upon the following decisions :

I.CCE v. L.H. Sugar Factories Ltd. [2006] 3 STR 715/[2005] 2 STT 282 (SC);

II.B.P.L. Engineering Ltd. v. CST [2006] 3 STR 747 (Trib. - Bang.);

III.L.H. Sugar Factories Ltd. v. CCE 2006 (3) STR 230/[1994-2006] STT 509 (Delhi - CESTAT).

3. The Ld. DR on behalf of the respondent submits that this Tribunal in the case of J.K. Industries Ltd. v. CCE 2006 (3) S.T.R. 14/ 4 STT 117 (New Delhi - CESTAT) held that the Service Tax paid on the basis of self-assessment is tax assessed and validly paid under liability arising under amendment section 71A of Finance Act, 1994 as inserted by the Finance Act, 2003 requiring appellant to file such return and appellants not entitled to refund. He also relied upon the decision of the Tribunal in the case of CCE v. Shri Prakash Industries Ltd. [2006] 3 STR 204/ 5 STT 162 (CESTAT - New Delhi).

4. After hearing both the sides and on perusal of records, I find that this Tribunal in the case of J.K. Industries Ltd. (supra) rejected the refund of Service Tax. It is held that there is no question of issuance of any show-cause notice under section 73 of Finance Act, 1994 for recovery. The present case related to recovery of Service Tax under section 73 of Finance Act, 1994, wherein the liability to file return is cast on the appellant only under section 71A of the said Act. So, prima facie the decision of the Tribunal in the case of J.K. Industries Ltd. (supra) is not applicable herein, in other words, the case of L.H. Sugar Factories Ltd. (supra) is applicable. As such, the applicant is able to make out a prima facie case for waiver of pre-deposit of entire amount of tax and penalty. Accordingly the stay application is allowed and the requirement of pre-deposit of tax and penalty is waived till the disposal of the appeal.