TaxTMI 
TaxTMI 
2023 (3) TMI 1441
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....at they received show cause notice proposing to deny such cenvat credit on the ground that since the appellant paid R& D cess on the IPR service, service tax was not payable as per notification no. 17/2004- ST and hence since service tax was not payable the appellant is not eligible for cenvat credit. The appellant reversed Rs 40,57,595/- and since the tax was not payable filed the refund claim of such amount of Rs. 40,57,595/- on the grounds that the tax was paid erroneously. Against this refund claim the appellant received another show cause notice proposing to deny the refund claim on the ground that the appellant did not submit evidence to establish that the benefit of notification no. 17/2004- ST was available to them. The appellant ha....
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....n therefore, the appellant are rightly entitled for cenvat credit. 3. Shri Rajesh K Agarwal, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. First we are taking up the Appeal No. E/ 12610/2013- DB which is on the issue of availment of cenvat credit in respect of service tax paid on reverse charge. The revenue has denied the cenvat credit on the ground that since the service is exempted under notification no. 17/2004-ST as the appellant have paid the R& D cess, therefore, the tax paid on such exempted service cannot be allowed as cenvat credit. For ease of reference Notification No. 17/2004....
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....Provided that,............... [(1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.]" From the above Section 5 A it is clear that the assessee is bound to avail an unconditional (absolute) notification but there is no compulsion to avail a conditional notification. As per the above provision the appellant enjoys the option of availing the conditional notification or not. Therefore, if the appellant have paid the Service tax without availing Notification No. 17/2004-ST the same is not obj....