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2023 (9) TMI 925 - CESTAT AHMEDABADSeeking the amount (Service tax) paid to be deposited and appropriated in terms of Section 73A(2) of Finance Act, 1994 - Not availing the benefit of exemption from service tax on the job work - Exemption as per the N/N. 8/2005-ST dated 01.03.2005 - HELD THAT:- From the sub Rule-2, it is clear that even if any amount of service tax is not required to be paid and the same is collected, it needs to be credited in the Central Government account. In the present case, there is no dispute whether or not service tax payable by the appellant and if the same is collected by the service recipient, it was admittedly deposited to the Central Government. Therefore, no further appropriation under Section 73A(2) is required. Section 73A(2) is required only when the assessee, if not required to pay any service tax but collected from the service recipient and not deposited to the Central Government, same needs to be recovered. In the present case, there is no dispute that the appellant have deposited service tax recovered from the service recipient to the central Government. Therefore, no further action is required. The entire case has been made out as the appellant was not supposed to pay service tax in terms of Notification No. 8/2005-ST. On this ground, it is not disputed that the service provided by the appellant is taxable service but by virtue of Notification No. 8/2005-ST, since the Notification No. 8/2005-ST exempts but the same is admittedly on certain conditions and is not absolutely exemption notification and in terms of Section 5A of Central Excise Act, 1944 which is applicable to the service tax matters. It is option for the assessee to avail or not to avail the conditional exemption, therefore, the appellant opted not to avail Notification No. 08/2005-ST is not illegal or incorrect. For this reason also the entire proceedings against the appellant is not sustainable. The issuance of show cause notice and adjudication thereupon vide the impugned order was not correct - appeal allowed.
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