2017 (9) TMI 506 - AT - Service Tax

SEZ unit - refund of service tax paid - N/N. 12/2013-ST - whether the appellant has the list of approved services of which he is claiming the refund claims or otherwise? - Held that - the application for the approval of the list of services requires services for use in SEZ operations was filed on 16.08.2012 which was subsequently approved on 22.11.2013 in a meeting held on 19.07.2013 - an identical issue came up before the Tribunal in the case of Trizetto India Private Ltd. 2015 (5) TMI 453 - CESTAT MUMBAI , where it was held that Merely because there was a delay in grant of approval, that cannot take away the right accrued to the appellant for exemption from service tax in respect of the input services - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection under Notification No. 12/2013-ST.

Analysis:
The appeal addressed the rejection of a refund claim under Notification No. 12/2013-ST. The appellant, a Special Economic Zone (SEZ) unit, sought a refund for service tax paid for the period 01.07.2013 to 22.12.2013. The key issue was whether the appellant satisfied the conditions for the refund claim. The lower authorities rejected the claim citing that the list of approved services was issued by the DGFT authorities after the period involved. The crucial question was whether the appellant possessed the list of approved services for which the refund claim was made.

The Tribunal referred to a similar case involving Trizetto India Pvt. Ltd., where the approval of input services for export took place before the actual export, despite a delay in the approval process. The Tribunal held that the delay in approval did not negate the appellant's right to claim the exemption from service tax. This decision was based on the principle that the conditions of the notification must be fulfilled at the time of availing the services, not necessarily at the time of approval. Therefore, the delay in obtaining approval did not disqualify the appellant from claiming the refund.

In contrast, the case of Kolland Developers Private Ltd. was cited, where the Tribunal emphasized that the conditions of the notification must be met at the time of availing the services to qualify for the exemption. Since the appellants in that case did not have the services approved by the Approval Committee at the time of availing the services, the refund was denied. This distinction highlighted the importance of meeting the conditions of the notification at the time of service utilization.

Ultimately, the Tribunal found the facts of the present case aligned with the Trizetto India Pvt. Ltd. case, where the delay in approval did not invalidate the appellant's right to claim the refund. Consequently, the impugned order rejecting the refund claim was deemed unsustainable, leading to the appeal being allowed with consequential reliefs. The judgment underscored the significance of fulfilling the conditions of the notification at the time of service utilization rather than at the time of approval for claiming exemptions under Notification No. 12/2013-ST.