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2023 (3) TMI 1441 - AT - Service TaxCENVAT Credit - amount paid towards technical knowhow under the head of IPR services - denial on the ground that since the appellant paid R& D cess on the IPR service, service tax was not payable as per notification no. 17/2004- ST and hence the appellant is not eligible for cenvat credit - reverse charge mechanism - denial of 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. 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 recipient is entitled for the cenvat credit - reliance can be placed in COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I VERSUS CEGAT, CHENNAI [2005 (1) TMI 125 - HIGH COURT OF JUDICATURE AT MADRAS] and COMMISSIONER, C. EX., & CUSTOMS VERSUS PURITY FLEXPACK LTD. [2006 (11) TMI 105 - HIGH COURT, GUJARAT]. The appellant are entitled for the cenvat credit of the total amount paid as service tax. Accordingly, the impugned order set aside - appeal allowed. Refund claim - HELD THAT:- Since the entire amount of cenvat credit of the service tax paid by the appellant is allowed, there is no question of further refund as claimed.
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