2018 (10) TMI 168 - AT - Service Tax

SEZ Unit - Refund claim - time limitation - various services received during the period April 2009 to March 2013 and March 2011 to July 2012, appellant had filed these returns on 07.10.2013 and 21.10.2013 - it was alleged that appellant had filed the returns belatedly i.e. beyond the period of one year - N/N. 9/2009-ST and N/N. 17/2011-ST, dated 1.3.2011. Held that - It is not in dispute that appellant is an SEZ unit and he is not liable to pay any tax or duty for the services on the inputs received by him as per SEZ Act. In order to monitor as a facilitative mechanism, notification No. 17/2011-ST provided for discharge of service tax liability by the service providers first and subsequently the service recipient in SEZ to claim the said refund after making the payment to the service provider. The said notification, as rightly pointed out by Ld. Counsel, does have a clause for extending the time or condoning the delay in filing the refund claims by the jurisdictional Asst. Commissioner or Dy. Commissioner, as the case may be. In the case in hand, it is noticed that at the time of personal hearing before the jurisdictional Asst. Commissioner, the Counsel for appellant had specifically requested the Asst. Commissioner, to condone the delay made in filing of the refund claims - The adjudicating authority, in the case in hand, despite recording the same and within his authority to condone the delay, did not do so. On merits, it is noticed that appellant is eligible for refund. The adjudicating authority should have condoned the delay and processed the claim in a broader perspective. The delay is condoned and the refund claims being on merits admissible, are allowed - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
- Rejection of refund claims by appellants under notification No. 9/2009-ST and notification No. 17/2011-ST for services received by an SEZ unit.

Analysis:
1. Issue of Refund Claim Rejection: The primary issue in this case revolved around the rejection of refund claims filed by the appellants under notification No. 9/2009-ST and notification No. 17/2011-ST. The lower authorities had concluded that the refund claims were filed belatedly, beyond the stipulated one-year period. However, the SEZ unit, as per SEZ Act, is not liable to pay tax for services received. The notification provided a mechanism for service tax liability discharge by service providers, to be claimed as a refund by the SEZ unit. The appellant's counsel argued that the delay in filing should have been condoned as per the notification's provisions, citing relevant case laws supporting the SEZ unit's eligibility for refund claims.

2. Jurisdictional Asst. Commissioner's Role: The notification No. 17/2011-ST included a clause allowing condonation of delay in filing refund claims by the jurisdictional Asst. Commissioner or Dy. Commissioner. The Tribunal referred to previous cases where delays were condoned based on this provision. In this case, during a personal hearing, the appellant's counsel specifically requested the Asst. Commissioner to condone the filing delay. Despite this, the adjudicating authority did not exercise the power to condone the delay, even though the appellant was found eligible for a refund on merits.

3. SEZ Unit's Eligibility for Refund: The Tribunal emphasized that the SEZ unit, being exempt from tax liabilities, was entitled to claim refunds for services received. The Tribunal highlighted that the adjudicating authority should have considered the broader perspective and condoned the delay, as supported by relevant case laws and previous tribunal decisions. The delay was ultimately condoned, and the refund claims were deemed admissible based on the SEZ unit's eligibility and compliance with notification conditions.

4. Conclusion: The Tribunal set aside the impugned orders and allowed the appeals, granting consequential relief to the appellants. The judgment highlighted the SEZ unit's entitlement to claim refunds for services received, emphasizing the importance of considering the broader perspective and relevant legal provisions in such cases. The decision underscored the significance of adhering to notification conditions while also ensuring fair treatment for SEZ units in claiming refunds for tax-exempt services.