2024 (1) TMI 455 - AT - Service Tax

Refund of Service Tax paid - rejection on the ground that conditions of N/N. 09/2009 as amended by N/N.17/2011-ST dated 01.03.2011 were not complied - whether against the mandate of having invoice in original as per the notification a photocopy backed by C.A certificate can be accepted? - whether retrospective effect can be given to specified operation having been approved by Board Of Approval/Unit Approval Committee which were not available at the time even when the refund was applied? Non production of invoice and alternate course available to the appellant - HELD THAT - This Court finds support from the decision of Commissioner of Central Excise and Customs Vadodara-II vs. Steel co Gujarat Ltd. reported in 2010 (255) ELT 518 (Guj.) wherein, the Hon ble High Court of Gujarat approved the course of action, whereby in the absence of original invoice, photocopy duly verified by the Range Superintendent was directed to be accepted. This Court decides accordingly and directs that the photocopy of invoice can be taken as evidence of underlying transaction, if the same is got verified by the department/appellant party in the matter. On this issue, the matter is accordingly remitted. Retrospective application of approval of certain operations when granted by the executive authorities under SEZ Act - Administrative discretion of authorities - HELD THAT - This Court finds that any given approval of specified or applied operations to a Developer or unit is prerogative of the executive authority under SEZ only. This Court, therefore, in the absence of any such decision of the executive authority of the SEZ Act having been brought on record, is not inclined to exercise discretion not particularly vested in this Court. Matter is therefore remitted back to the original authority, on this issue too with direction to seek clarification on this aspect from the office of Development Commissioner, take it on record and then decide the matter. Appellant shall also be free to take such clarification from the office to Development Commissioner, if so desired by them. Appeal disposed off by way of remand.

Summary

Issues Involved:
1. Rejection of refund claims due to non-inclusion of services in the approved list for authorized operations.
2. Rejection of refund claims due to non-submission of original invoices.

Issue-Wise Detailed Analysis:

1. Non-Inclusion of Services in the Approved List for Authorized Operations:
The appeals at Sr. Nos. 1, 2, 3, and 7 were primarily rejected because the service category of "outdoor catering service" and other services were not included in the list of approved services for authorized operations by the Unit Approval Committee (UAC) or Board of Approval (BOA) at the time of filing the refund applications. The appellant argued that the approval of such services should operate retrospectively from the date of the application for inclusion, citing the decision in CST & Service Tax, Ahmedabad Vs. Adani Power Ltd., which held that approval by the Approval Committee takes effect retrospectively from the date of application. The appellant also relied on the decision in SRF Ltd. Vs. Commissioner of Customs, Central Excise & Service Tax, LTU, New Delhi, which emphasized that any additional condition prescribed under a Service Tax notification conflicting with the SEZ Act, 2005, would be overridden by the SEZ Act.

The Tribunal, however, noted that the issue of retrospective application of approval is under the purview of the SEZ authorities, such as the Development Commissioner, UAC, or BOA. The Tribunal cannot grant retrospectivity to an executive action under the SEZ Act. Therefore, the matter was remanded to the original authority to seek clarification from the Development Commissioner and decide accordingly.

2. Non-Submission of Original Invoices:
The appeals at Sr. Nos. 2, 3, 4, 5, 6, and 7 were rejected due to the appellant's failure to produce original invoices, which is a statutory requirement under the relevant notifications. The appellant contended that the refund claims should not be denied merely because of the non-submission of original invoices, especially when photocopies were submitted along with a Chartered Accountant's certificate confirming that the burden of tax was not passed on to any other person. The appellant cited several decisions, including Poornam Info Vision Vs. Commissioner of C.T. & C. Ex., Cochin, which held that non-submission of original invoices is a procedural lapse and should not lead to the denial of substantive benefits.

The Tribunal supported the appellant's position by referring to the decision in Commissioner of Central Excise and Customs Vadodara-II vs. Steel Co Gujarat Ltd., where the Hon'ble High Court of Gujarat approved the acceptance of photocopies of invoices verified by the Range Superintendent. The Tribunal directed that photocopies of invoices could be accepted if verified by the department or the appellant. The matter was remanded to the original authority to verify the photocopies and decide accordingly.

Conclusion:
The Tribunal remanded the matters to the original authority on both issues. For the issue of non-inclusion of services in the approved list, the original authority was directed to seek clarification from the Development Commissioner and decide based on that clarification. For the issue of non-submission of original invoices, the original authority was directed to verify the photocopies of invoices and decide accordingly. The appeals were disposed of by way of remand.