TMI Blog2017 (5) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax paid by the job worker is correct and legal therefore the Cenvat credit availed by the appellant cannot be disallowed - appeal allowed - decided in favor of appellant. - E/1712/10 - A/87139/17/SMB - Dated:- 26-4-2017 - Mr Ramesh Nair, Member(Judicial) Shri. D.H. Nadkarni, Advocate for the Appellants Shri. N.N. Prabhudesai, Superintendent (A.R.) for the Respondent ORDER The fact of the case is that appellant availed Cenvat credit in respect of input service namely production of goods on behalf of the client under the main head Business Auxiliary Services was provided by the job worker to the appellant for doing job work of goods on behalf of the appellant. The case of the department is that the Cenvat credit on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the job worker in the capacity of service provider discharged the service tax on the services, which is exempted under notification no.8/05-ST whatever service tax was paid by the job worker cannot be treated as service tax, Cenvat credit is allowed in respect of service tax paid on the input service therefore credit was rightly denied by the lower authorities. In respect of his submission, he placed reliance on the following judgments; (a ) Bharat Heavy Electricals Ltd Vs. Commr. of Cus. C. Ex. Kanpur[2015(323) ELT 417(All.)] (b) Commissioner of Customs C. Ex. Meerut-I Vs. R.S. Travels[2015(38) S.T.R. 3(Uttarakhand)] (c) Ajit Metal Industries Vs. Collector of Central Excise [1993(66) ELT 81(Tri.)] (d) C.J. Industries Vs. Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unconditionally or subject to certain condition. In the said position no compulsion was provided that assessee has to avail exemption mandatorily. Such types of provisions is there in the Central Excise Act under Section 5 wherein if any unconditional(absolute) notification is issued, the assessee has no option except to avail exemption and is not allowed to pay any excise duty Section 5A (i)(1) which reads as under: Section 5A in the Central Excise Act, 1944 24 [5A. Power to grant exemption from duty of excise.- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or to pay service tax. In the present case the service tax provider i.e. job worker has opted to pay service tax without availing the exemption notification no.8/05-ST which cannot be objected, therefore service tax paid by the job worker is correct and legal therefore the Cenvat credit availed by the appellant cannot be disallowed. Moreover, I am of the view that per the provisions of Cenvat credit there is no condition that if any service tax is paid on the exempted services or not taxable services the cenvat credit shall not be allowed. As per the Cenvat credit rules the only requirement is that if the service provider has paid service tax and said services received under the cover of valid documents and used in the manufacture or prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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