2018 (10) TMI 90 - AT - Service Tax

Supply of Taxable Goods Services to SEZ - Exemption under Notification No 9/2009-ST dated 3.3.2009 & 17/2011-ST dated 01.03.2011 - supplies made to SEZ units/ Developers / Main Contractors etc for development of SEZ Units - benefit of the exemption is sought to be denied in respect of those services which have been- i. Not wholly consumed within the SEZ; and ii. Provided to the contractors providing the services to SEZ unit or developer. Held that - During the course of arguments and in the Appeal paper book appellants have produced the copy of the invoices and attached log sheets in respect of the supplies made by them to SEZ Unit developers/ Units. There is no dispute about the fact that these invoices, logsheets and contracts were also produced and examined by the Commissioner during the course of adjudication. From the perusal of the invoices and log sheets it is quite evident that each log sheet is signed jointly by the crane operator, user/ Client Site in Charge, Site Engineer/ Site Supervisor and Project Manager certifying the usage hours of tangible goods on daily basis at the respective site. These weekly log sheets are then made the basis for issuance of the invoice by the service provider to the service recipient. There is no dispute that the sites in respect of which these invoices/ log sheets are, belong to the SEZ Unit or a developer and these services have been wholly consumed at the said site - the services provided by the appellant in respect of these sites have been provided by the appellant to the SEZ Unit or developer. Further there appears to be no dispute also about the fact that these services are falling in the category of the approved services for the SEZ Operation, in respect of those SEZ Unit/ Developer. Since as per the documents produced along with appeal, there is no dispute in respect of the fact that these services have been provided to a SEZ Unit / Developer and consumed within the SEZ, the exemption is admissible in respect of the services so provided. Commissioner also has not sought to state the contrary but has only sought to deny the exemption on the ground that in these instances the exemption should not have been allowed affront but by way of the claim of refund by the SEZ Unit/ Developer. Since there has been substantial compliance the order of Commissioner holding that these services have not been wholly consumed within the SEZ is not sustainable. It was only by the notification No 17/2011-St dated 1.03.2011 that for determining whether services have been consumed wholly within the SEZ, categorization of services was done, and in respect of services provided by the appellant (category III services), the services were to be considered as wholly consumed within SEZ only if the SEZ unit or Developer does not own or carry on any business other than SEZ operation was introduced. It is quite evident that these services have been wholly consumed for authorized operations by the SEZ Unit/ Developer. Issue in respect of the supply of service to the Contractors of the SEZ Unit or Developers is no longer res-integra. This tribunal has in case series of case as listed below held that exemption shall be available even if the services for consumption in SEZ by the SEZ Unit/ Developer are provided through the Contractor of SEZ Unit/ Developer. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Admissibility of exemption under Notifications No. 9/2009-ST and 17/2011-ST for services provided to SEZ units/developers.
2. Denial of exemption due to services not wholly consumed within SEZ.
3. Denial of exemption for services provided to contractors/sub-contractors of SEZ units/developers.
4. Invocation of extended period of limitation.
5. Imposition of penalties.

Detailed Analysis:

1. Admissibility of Exemption under Notifications No. 9/2009-ST and 17/2011-ST:
The appellants provided taxable services under "Supply of Taxable Goods Services" and claimed exemptions under Notifications No. 9/2009-ST and 17/2011-ST for services provided to SEZ units/developers. The Commissioner denied these exemptions, leading to the confirmation of service tax demands totaling ?2,61,20,477/- for the period 01.04.2009 to 31.03.2012. The appellants argued that the services were consumed within the SEZ, supported by purchase orders, contracts, certificates, declarations, tax invoices, and log books.

2. Denial of Exemption Due to Services Not Wholly Consumed within SEZ:
The Commissioner denied exemptions for services provided to entities like M/s Tril Info Park Ltd, M/s JSL Ltd, and Vedanta Aluminum Ltd, asserting that the services were not wholly consumed within the SEZ. The denial was based on discrepancies in site addresses and the de-notification of SEZ status for some entities. The Tribunal, however, found that the services were indeed consumed within the SEZ, as evidenced by the documentation provided, including jointly signed log sheets certifying usage at SEZ sites.

3. Denial of Exemption for Services Provided to Contractors/Sub-Contractors:
The Commissioner also denied exemptions for services provided to contractors/sub-contractors of SEZ units/developers, arguing that the services were not directly received by the SEZ units/developers. The Tribunal referenced previous judgments, including Jindal Stainless Limited [2017 (51) STR 130 (DEL)] and Intas Pharma Ltd. [2013 (32) STR 543 (T)], which supported the view that services provided through contractors for SEZ consumption are eligible for exemption. The Tribunal thus held that the exemptions should be granted even if services were provided through contractors.

4. Invocation of Extended Period of Limitation:
The appellants contested the invocation of the extended period of limitation, arguing that there was no suppression or fraud with intent to evade tax. They highlighted that their records were audited twice, and no objections were raised during the first audit. The Tribunal did not delve deeply into this issue, as the appeal was decided on the merits of the exemptions.

5. Imposition of Penalties:
The Commissioner imposed penalties under Sections 77(2) and 78 of the Finance Act, 1994, for failure to provide correct facts and figures in service tax returns. The appellants argued that since there was no liability for service tax, no penalties should be imposed. The Tribunal, having decided in favor of the appellants on the merits of the exemptions, implicitly negated the basis for imposing penalties.

Conclusion:
The Tribunal allowed the appeal, recognizing that the services provided were indeed consumed within the SEZ and that exemptions under the relevant notifications were admissible. The Tribunal emphasized that the SEZ Act, 2005, and related rules provide overriding exemptions for services provided to SEZ units/developers, and these should not be restricted by procedural notifications under the Finance Act, 1994. The appeal was thus allowed, and the demands and penalties were set aside.

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