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TMI Blog2020 (1) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to credit of only that amount of tax so paid by them - HELD THAT:- The only allegation in the show cause notice was excess payment of service tax and excess availment of the credit. As such it was only this legal issue which was required to be examined and there was no question of production of any evidence etc. before the Commissioner (Appeals). The appellate authority has clearly gone w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence of opinion between two Members and as per the majority order, it was held that even if no duty was required to be paid on the final product being exempted, the assessee having paid the duty was entitled to the credit of the same. There are no reason to deny the credit of service tax to the appellant - appeal allowed - decided in favor of appellant. - Excise Appeal No. 89989 of 2018 - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the balance 75% was exempted subject to certain conditions. However, the appellant instead of availing the benefit of said notification paid the entire 100% service tax and availed the credit of entire service tax so paid by them. 3. Revenue s only objection is that the appellant should have paid 25% service tax, in which case they would be entitled to credit of only that amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of service tax and excess availment of the credit. As such it was only this legal issue which was required to be examined and there was no question of production of any evidence etc. before the Commissioner (Appeals). The appellate authority has clearly gone wrong on the subject. Coming to the legal issue, it is well settled law that an assessee cannot be compelled to avail the exemption, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oated Ispat Ltd. v. Commissioner of Central Excise, Delhi III 2015 (317) ELT 538 (Tri-Del) where originally, there was difference of opinion between two Members and as per the majority order, it was held that even if no duty was required to be paid on the final product being exempted, the assessee having paid the duty was entitled to the credit of the same. 6. Inasmuch as the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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