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2023 (5) TMI 79 - AT - Central ExciseRefund of Service Tax paid - CHA service - N/N. 41/2007-ST dated 06-10-2007 - HELD THAT:- As per clause (d) of the proviso of the notification, it is seen that the manufacturer shall not avail CENVAT Credit if refund claim is filed under the said Notification. It implies that the manufacturer has an option to avail credit instead of filing the refund. The issue has been analysed by the Tribunal in the case of MONARCH CATALYST PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-I [2016 (2) TMI 64 - CESTAT MUMBAI] where it was held that as per Notification 41/2007-S.T., dated 6-10- 2007 as superseded by Notification 18/2009-S.T., dated 7-7-2009, the appellant has an option either to avail Cenvat credit or to claim refund and the appellant has chosen to claim Cenvat credit and this fact has been reflected in the records of the appellant also, but the respondent has never raised any objections all through. Earlier to the present audit, the department has conducted the audit on two occasions but the department never raised this issue. The demand cannot sustain - Appeal allowed.
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