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2019 (8) TMI 748 - HC - Service TaxExemption to SEZ unit - authorised operations in a SEZ - Validity of conditions imposed - Board of approval refused to issue of Forms A1 and A2 on the ground that these forms cannot be issued with retrospective effect. - Assessee contended that, Neither the SEZ Act nor the Rules framed thereunder, make the exemption available under the Act, subject to fulfilment of conditions stipulated in any other enactment including the Finance Act, 1994. - section 26(1)(e) of the Special Economic Zones Act, 2005 - availability of effective alternative remedy - maintainability of petition - HELD THAT - Since the refusal of a writ court to entertain a writ petition under article 226 of the Constitution of India is not out of a bar of jurisdiction, but on account of a self-imposed restriction, there is no impediment for this court to entertain a writ petition in cases, (1) where the principles of natural justice are violated ; (2) where the impugned action is without jurisdiction ; and (3) where the impugned action is without the authority of law - If the petitioners succeed on this ground, we need not drive them to the alternative remedy available under the statute. If they fail on this ground, they can always be directed to avail the alternative remedy. Whether the availability of exemptions under section 26 of the SEZ Act would depend not only upon the terms and conditions prescribed under section 26(2), but also upon the terms and conditions prescribed in the notifications issued under various enactments such as Customs Act, 1962, Customs Tariff Act, 1975, Central Excise Act, 1944, Central Excise Tariff Act, 1985, Finance Act, 1994 and Central Sales Tax Act, 1956, etc.? - HELD THAT - The terms and conditions subject to which the exemptions are to be granted under sub-section (1) of section 26 should be prescribed by the Rules made by the Central Government under the SEZ Act, 2005. Being conscious of this fact, the executive has incorporated rule 22 in the SEZ Rules, 2006 issued in exercise of the power conferred by section 55 of the SEZ Act. It is not necessary to extract rule 22, since there is no dispute about the fact (1) that the petitioners have complied with the prescriptions contained in rule 22 of the SEZ Rules, 2006, and (2) that rule 22 of the SEZ Rules, 2006 does not stipulate the filing of Forms A1 and A2 as prescribed in the three notifications issued under section 93 of the Finance Act, 1994 - the fifth respondent does not dispute the fact that the petitioners have fulfilled the terms and conditions stipulated in rule 22 of the SEZ Rules, 2006 and that if those Rules are considered on a stand alone basis, the petitioners would be entitled to the exemptions. Sub-rule (5) was inserted under rule 47. Sub-rule (5) of rule 47 makes a reference to the provisions of the three enactments namely Customs Act, 1962, Central Excise Act, 1944 and Finance Act, 1994 and the Rules made there- under and the notifications issued thereunder. It is by virtue of this sub- rule (5) that the authorities can fall back upon the Rules and notifications issued under those three enactments. The very fact that sub-rule (5) was inserted would show, that but for its insertion, the respondents cannot fall back upon the Rules framed under the Customs Act, etc., for dealing with a question of refund, demand, adjudication, etc. - If sub-rule (5) of rule 47 had also included the procedure for grant of exemption within its purview, then the stand taken by the Department would be perfectly valid. The very fact that sub-rule (5) of rule 47 made the Rules and notifications issued under certain Acts applicable only to issues of refund, demand, etc., would show that rules 22 and 31 have independent legs to stand. Petition allowed.
Issues Involved:
1. Challenge to the Order-in-Original confirming the demand of service tax. 2. Challenge to three notifications issued by the Government of India. 3. Interpretation of the SEZ Act, 2005 and SEZ Rules, 2006 in relation to exemptions from service tax. 4. Jurisdiction and authority of the fifth respondent. 5. Availability of alternative remedy. Detailed Analysis: 1. Challenge to the Order-in-Original Confirming the Demand of Service Tax: The petitioners challenged the Order-in-Original dated February 20, 2018, passed by the Commissioner of Central Tax, confirming the demand of service tax for the period October 2011 to March 2016 and imposing penalties under sections 77 and 78 of the Finance Act, 1994. The main contention was that the petitioners were entitled to exemptions under section 26(1)(e) of the SEZ Act, 2005, which should not be subject to conditions stipulated in the notifications issued under section 93 of the Finance Act, 1994. The court held that the SEZ Act, 2005 and the rules framed thereunder provide a self-contained code for exemptions, and the conditions in the Finance Act, 1994 notifications were not applicable. 2. Challenge to Three Notifications Issued by the Government of India: The petitioners also challenged three notifications issued on March 1, 2011, June 20, 2012, and July 1, 2013, under the Finance Act, 1994, which required the filing of Forms A1 and A2 to avail exemptions. The court found that the SEZ Act, 2005, specifically section 26(1), grants exemptions to developers and entrepreneurs in SEZs, and these exemptions are subject to the terms and conditions prescribed by the Central Government under section 26(2) of the SEZ Act, 2005, and not under any other enactment. 3. Interpretation of the SEZ Act, 2005 and SEZ Rules, 2006 in Relation to Exemptions from Service Tax: The court analyzed the interplay between the SEZ Act, 2005, SEZ Rules, 2006, and the Finance Act, 1994. It concluded that the SEZ Act, 2005, and the rules framed thereunder constitute a self-contained code for granting exemptions. The SEZ Act, 2005, specifically section 26(1), provides for exemptions from various duties, including service tax, for developers and entrepreneurs in SEZs. The conditions for these exemptions are prescribed by the rules made under the SEZ Act, 2005, and not by notifications under the Finance Act, 1994. 4. Jurisdiction and Authority of the Fifth Respondent: The petitioners argued that the fifth respondent, the Commissioner of Central Tax, had no jurisdiction to demand service tax as the exemptions were governed by the SEZ Act, 2005, and the rules framed thereunder. The court agreed, stating that the SEZ Act, 2005, has an overriding effect over other laws, including the Finance Act, 1994, as per section 51 of the SEZ Act, 2005. Therefore, the fifth respondent's order was without jurisdiction and authority of law. 5. Availability of Alternative Remedy: The respondents argued that the petitioners had an effective alternative remedy of appeal against the Order-in-Original. However, the court held that the availability of an alternative remedy does not bar the court from entertaining a writ petition if the impugned action is without jurisdiction or authority of law. Since the court found that the fifth respondent acted without jurisdiction, it entertained the writ petition and set aside the Order-in-Original and the notifications in question. Conclusion: The writ petition was allowed, setting aside the Order-in-Original dated February 20, 2018, and the notifications in question insofar as they relate to special economic zones. The court emphasized that the SEZ Act, 2005, and the rules framed thereunder provide a self-contained code for exemptions, and the conditions in the Finance Act, 1994 notifications were not applicable.
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