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2023 (10) TMI 673 - CESTAT AHMEDABADCENVAT Credit of service tax paid by the job workers - denial on the ground that the job worker should not have paid the service tax - exemption under N/N. 08/2005-ST and 25/2012-ST - whether the job worker has option to pay the service tax or compulsorily avail the exemption Notification No 08/2005 and 25/2012? HELD THAT:- In terms of subsection (1A) of Section 5A of CEA for the purpose of central excise if an exemption is granted absolutely the manufacturer of excisable goods shall not have option to pay excise duty whereas the Notification necessarily to be availed by the assesse. Unlike sub section (1A) of Section 5A, there is no provision in the Finance Act, 1994 to compulsorily avail the exemption granted absolutely. Therefore, Notification No. 08/2005-ST and 25/2012-ST even though they grant absolute exemption but in absence of provision such as Sub section (1A) of Section 5A of Finance Act, 1994 the assessee has option either to pay service tax or to avail the exemption. When the job worker has paid the tax without availing the exemption Notification there is no illegality in payment of such service tax. If this be so, then the service recipient, in the present case, the appellant are legally entitled to avail the cenvat credit as there is no dispute that the input services is directly used in or in relation to manufacture of their final product. There are nothing illegal or wrong on the part of the appellant in availing the cenvat credit on the input services provided by the job worker to the appellant - the impugned order is not sustainable - appeal allowed.
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