2015 (4) TMI 781 - AT - Service Tax

Denial of Refund claim - Exemption claim - services availed by SEZ unit - Non fulfillment of conditions of notification - Notification No. 17/2009 ST dated 07.7.2009 as amended by Notification No. 40/2009 ST dated 30.9.2009 - held that - Exemption is admissible to the exporters of goods with respect to specified services received and used by the appellant for export of goods. It is observed from the case records that services were received by the SEZ unit of the appellant under invoice dated 30.01.2010 dated 31.12.2009 when the Services for transport of export of goods through national waterways inland water and Coastal Shipping were provided by M/s. Essar Logistics Limited. The said service stand included at Sr. No. 17 of Notification No. 17/2009 ST dated 07.7.2009 as per Notification No. 40/2009 ST dated 30.9.2009. Since the appellant had paid the duty, no reasoning has been given by the first appellate authority as to why refund under Notification No. 17/2009 ST, as amended, will not be admissible. - It is not denied by the Revenue that both the SEZ unit and the DTA unit were Later merged and the appellant therefore, become rightful claimant of the refund of Services availed by the SEZ unit of the appellant. Appellant can not be asked to fulfil the condition of Notification No. 9/2009-ST dated 03.3.2009 which he has not claimed. - Decided in favour of assessee.

Summary

Issues:
- Eligibility of the appellant for refund under Notification No. 17/2009-ST dated 07.7.2009
- Interpretation of conditions under Notification No. 9/2009-ST dated 03.3.2009
- Merger of SEZ unit and DTA unit of the appellant

Analysis:

1. Eligibility for Refund under Notification No. 17/2009-ST dated 07.7.2009:
The appellant filed an appeal against the Order-in-Appeal rejecting a refund claim of &8377; 9,33,373, citing ineligibility for exemption under Notification No. 17/2009-ST dated 07.7.2009. The appellant argued that the SEZ unit and DTA unit merged, making the appellant the rightful claimant for the refund. The services received by the SEZ unit for the export of goods were in line with the specified services under the said notification. The Tribunal observed that the duty was paid by the appellant, and no valid reasoning was provided by the first appellate authority for rejecting the refund claim. Citing relevant case laws and circulars, the Tribunal emphasized the need for a liberal view in granting export-related refunds to encourage exports and zero-tax export of goods and services. The Tribunal concluded that the appellant should be allowed the refund under Notification No. 17/2009-ST.

2. Interpretation of Conditions under Notification No. 9/2009-ST dated 03.3.2009:
The Revenue argued that the appellant was only eligible for a refund of export-linked taxes under Notification No. 9/2009-ST dated 03.03.2009. However, the Tribunal noted that the appellant did not claim the refund under this notification. Since the SEZ unit and DTA unit were later merged, the appellant rightfully claimed the refund for services availed by the SEZ unit. Therefore, the Tribunal held that the appellant cannot be compelled to fulfill the conditions of Notification No. 9/2009-ST, which were not claimed by the appellant.

3. Merger of SEZ Unit and DTA Unit:
The issue of the merger of the SEZ unit and DTA unit of the appellant was crucial in determining the rightful claimant for the refund. The Tribunal acknowledged that both units were merged, making the appellant eligible for the refund of services availed by the SEZ unit. This merger played a significant role in establishing the appellant's eligibility for the refund under Notification No. 17/2009-ST. The Tribunal's decision to allow the appeal was based on this merger and the fulfillment of conditions under the relevant notification.

In conclusion, the Tribunal allowed the appeal filed by the appellant, emphasizing the eligibility for the refund under Notification No. 17/2009-ST and the merger of the SEZ unit and DTA unit. The decision highlighted the importance of a liberal approach in granting export-related refunds to promote exports and zero-tax export of goods and services.