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2020 (1) TMI 67 - AT - Service TaxCENVAT Credit - Excess payment of service tax and excess availment of the credit - GTA service - abatement claim - service taxable at 25% and there is exemption of 75% - 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 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 wrong on the subject. It is well settled law that an assessee cannot be compelled to avail the exemption, which in any case is conditional exemption. The revenue did not raise any objection at the time of payment of 100% service tax. It is only when the credit of the same was availed by the assessee such objection came to be raised by the Revenue. In terms of the CENVAT Credit Rules, 2004, an assessee is entitled to avail the full credit of service tax PAID and not the tax payable. Inasmuch the appellant had paid 100% service tax they were entitled to credit of entire tax so paid by them. Reference can also be made to the majority decision in ASIAN COLOUR COATED ISPAT LTD. VERSUS COMMISSIONER OF C. EX., DELHI-III [2014 (9) TMI 974 - CESTAT NEW DELHI] 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. There are no reason to deny the credit of service tax to the appellant - appeal allowed - decided in favor of appellant.
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