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TMI Blog2013 (7) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee by observing that in case of export, place of removal gets extended to the load, port - Notification No. 41/2007-ST - There are conditions attached to the Notification and the refund of service tax is available to the exporter subject to the fulfillment of certain conditions. One of the condition is that no Cenvat credit of service tax paid on the specified services stands taken by the exporter. If the exporter avails the benefit of Cenvat credit, he would not be entitled to refund of service tax in terms of the said notification. The notification is in the alternative i.e. the exporter can either choose to avail the credit or to seek refund of the same. The notification cannot be adopted as a support to deny the Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exporter and used for export of the goods from the whole of service tax leviable thereon, subject to the conditions enumerated therein. The present notification allows exemption by way of refund of service tax paid on the specified services use for export of the said goods. One of the condition for availing the benefit of the said notification is that no Cenvat credit of service tax stands taken under the Cenvat Credit Rules, 2004. 3. After hearing both the sides, duly represented by Ms. Asmita A. Nayak, Advocate, the learned Counsel for the appellant and Shri S.K. Panda, AR for the respondent, I find that the legal issue stand decided by the Tribunal in catena of judgments. In the case of Commissioner vs. Adani Pharmachem Pvt. Ltd. repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the alternative i.e. the exporter can either choose to avail the credit or to seek refund of the same. The notification cannot be adopted as a support to deny the Cenvat credit claimed by the exporter on the ground that the exporter should have followed the system of refund in terms of the said notification. It is the option of the exporter either to claim refund of service tax, without availing the benefit of the Cenvat credit or to avail the Cenvat credit in terms of Cenvat Credit Rules in which case refund of the service tax would not be available to them. 5. In view of the foregoing discussions, I find that the denial of Cenvat credit is neither just nor proper. The same is accordingly set aside and appeal is allowed with consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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