2023 (5) TMI 653 - AT - Service Tax

Demand of service tax dropped - respondent availed exemption from payment of service tax for services provided to Special Economic Zones SEZ but did not provide documentary certificates to support its claim of exemption - notifications dated 03.03.2009 and 01.03.2011 - HELD THAT - The applicability of the notifications issued under section 93(1) of the Finance Act, 1994, which exempt taxable services provided in relation to the authorized operations in SEZ, has been considered by the Tribunal in M/S. SRF LIMITED VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX, LTU NEW DELHI AND COMMISSIONER OF CGST, AND CENTRAL EXCISE, INDORE 2022 (4) TMI 989 - CESTAT NEW DELHI wherein after analyzing the provisions of the Special Economic Zones Act, 2005, the provisions of notifications issued under the provisions of section 93(1) of the Finance Act and the decision of the Telangana High Court in GMR AEROSPACE ENGINEERING LIMITED AND ANOTHER VERSUS UNION OF INDIA AND OTHERS 2019 (8) TMI 748 - TELANGANA AND ANDHRA PRADESH HIGH COURT , the Tribunal observed that as the charge of service tax under the Finance Act, 1994 on the services provided for authorised operations of the appellant are overridden by section 51 of the SEZ Act, 2005, any exemption notifications for such services as well as the conditions laid down in them are redundant. Service tax, if any, paid on such input services for authorised operations need to be refunded to the appellant. We also find no force in the other grounds raised for denying the refund of service tax paid. Revenue however, submitted that in view of the provisions of section 26(2) of the SEZ Act, the exemption could have been claimed by the appellant only in accordance with the provisions of section 93(1) of the Finance Act - this submission has been dealt with by the Tribunal in SRF Ltd. and it has held that the exemption notification should have been issued under section 26(2) of the SEZ Act and the notifications issued under the Finance Act, in view of the provisions of SEZ Act, would have no application. The appeal filed by the department deserves to be dismissed and is dismissed.

Summary

Issues Involved:
1. Exemption from service tax for services provided to Special Economic Zones (SEZ).
2. Applicability of notifications issued under section 93(1) of the Finance Act, 1994.
3. Overriding effect of the SEZ Act, 2005 over other laws.

Summary:

1. Exemption from Service Tax for Services Provided to SEZ:
The core issue revolves around the respondent availing exemption from service tax for services provided to SEZs without providing the requisite documentary certificates as mandated by notifications dated 03.03.2009 and 01.03.2011. The Commissioner, in the impugned order, partially dropped the demand for service tax, stating that the SEZ Act, 2005 provides an ab initio exemption to service tax for services received by SEZ units. It was concluded that the substantial benefit could not be denied since the services were actually provided and consumed in the SEZ.

2. Applicability of Notifications Issued Under Section 93(1) of the Finance Act, 1994:
The Tribunal referenced the case of SRF Ltd. Vs. Commissioner of Customs, Central Excise & Service Tax, where it was determined that the notifications under section 93(1) of the Finance Act, 1994, which impose conditions for service tax exemption, are inconsistent with the SEZ Act. The SEZ Act, being a later enactment with specific provisions for SEZs, overrides the general provisions of the Finance Act. Therefore, the conditions imposed by the notifications under the Finance Act are not applicable to SEZs.

3. Overriding Effect of the SEZ Act, 2005:
The judgment emphasized that the SEZ Act has an overriding effect over any other inconsistent law, including the Finance Act. Section 26(1) of the SEZ Act explicitly exempts developers and units in SEZs from service tax for authorized operations. Section 51 of the SEZ Act further reinforces this by stating that the provisions of the SEZ Act shall prevail over any other law. The Tribunal concluded that the Commissioner was not justified in examining the conditions set out in the notification dated March 3, 2009, as the SEZ Act itself provides the necessary exemptions.

Conclusion:
The Tribunal dismissed the appeal filed by the department, affirming that the SEZ Act's provisions for service tax exemption prevail over the conditions imposed by notifications under the Finance Act. The judgment reiterates that SEZ units are entitled to service tax exemptions for authorized operations without needing to comply with the conditions of the Finance Act's notifications.