9911796707
TMI Blog2023 (3) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... /2004- ST was available to them. CENVAT Credit - HELD THAT:- From Section 5 A it is clear that the assessee is bound to avail an unconditional (absolute) notification but there is no compulsion to avail a conditional notification. As per the above provision the appellant enjoys the option of availing the conditional notification or not. Therefore, if the appellant have paid the Service tax without availing Notification No. 17/2004-ST the same is not objectionable and the payment of service tax is legal and correct. Consequently, the cenvat credit on such service tax paid Can also not be disputed. In catena of case laws it is held that even though the service tax on any service is not payable but assessee pays the service tax the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such amount of Rs. 40,57,595/- on the grounds that the tax was paid erroneously. Against this refund claim the appellant received another show cause notice proposing to deny the refund claim on the ground that the appellant did not submit evidence to establish that the benefit of notification no. 17/2004- ST was available to them. The appellant have therefore filed 2 appeals before this tribunal whereby Appeal No. ST/10610/2013 is for the rejected refund claim of Rs. 40,57,595/- and Appeal No. E/12610/2013 is for cenvat credit which was denied to the appellant on the ground that since service tax was not payable the appellant was not eligible for cenvat credit. 2. Shri Amal Dave, Learned Counsel appearing on behalf of the appellant submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit in respect of service tax paid on reverse charge. The revenue has denied the cenvat credit on the ground that since the service is exempted under notification no. 17/2004-ST as the appellant have paid the R D cess, therefore, the tax paid on such exempted service cannot be allowed as cenvat credit. For ease of reference Notification No. 17/2004 - ST is reproduced below:- Service tax on holder of intellectual property right Effective rate of duty In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided by the holder of intellectual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that the assessee is bound to avail an unconditional (absolute) notification but there is no compulsion to avail a conditional notification. As per the above provision the appellant enjoys the option of availing the conditional notification or not. Therefore, if the appellant have paid the Service tax without availing Notification No. 17/2004-ST the same is not objectionable and the payment of service tax is legal and correct. Consequently, the cenvat credit on such service tax paid Can also not be disputed. 4.1 Without prejudice, we also find that in catena of case laws it is held that even though the service tax on any service is not payable but assessee pays the service tax the recipient is entitled for the cenvat credit. We take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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