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TMI Blog2023 (10) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not have option to pay excise duty whereas the Notification necessarily to be availed by the assesse. Unlike sub section (1A) of Section 5A, there is no provision in the Finance Act, 1994 to compulsorily avail the exemption granted absolutely. Therefore, Notification No. 08/2005-ST and 25/2012-ST even though they grant absolute exemption but in absence of provision such as Sub section (1A) of Section 5A of Finance Act, 1994 the assessee has option either to pay service tax or to avail the exemption. When the job worker has paid the tax without availing the exemption Notification there is no illegality in payment of such service tax. If this be so, then the service recipient, in the present case, the appellant are legally entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the input services on that the job workers have deposited the tax to the credit of the Central Government. The appellant is entitled and has rightly availed the cenvat credit of the service tax by the job worker. 2.2 He submits that in the appellant s own case involving the identical issue, it was raised by the department with respect to the inputs purchased by the appellant i.e. drawn wires from rod from input supplier on which the input supplier had paid the central excise duty and the appellant has availed the cenvat credit of excise duty paid on those inputs i.e. drawn wire. The department had issued the show cause notice proposing to recover wrongly availed cenvat credit of the duty paid on the ground that the process of drawing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax or compulsorily avail the exemption Notification No 08/2005 and 25/2012. In this regard, we would like to refer Section 83 of the Finance Act, 1994 whereby certain sections of Central Excise Act have been made applicable in the matter of service tax. The Section 83 is reproduced below:- SECTION 83. Application of certain provisions of Act 1 of 1944. The provisions of the following sections of the Central Excise Act, 1944, as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise :- sub-section (2A) of section 5A, sub-section(2) of section 9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 15, 15A, 15B, 31, 32, 32A to 32P, 33A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.] 7[(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from the payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable.] 8[(2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2), insert an explanation in such notification or order, as the case may be, by notification in the Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this section.] 9[(5) Every notification issued under sub-section (1) or sub-section (2-A) shall, unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette.] (6) 10[* * *ic9533] 4.2 In terms of subsection (1A) of Section 5A for the purpose of central excise if an exemption is granted absolutely the manufacturer of excisable goods shall not have option to pay excise duty whereas the Notification necessarily to be availed by the assesse. Unlike sub section (1A) of Section 5A, there is no provision in the Finance Act, 1994 to compulsori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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