2018 (5) TMI 483 - AT - Service Tax

Refund of service tax paid - SEZ unit - rejection on the ground that the specified services were procured prior to UAC approval - Held that - The issue is no more res integra as this Tribunal in the case of Mylan Laboratories Ltd. 2017 (9) TMI 423 - CESTAT HYDERABAD has held that The bone of contention in these appeals being that the service tax liability was discharged correctly and when it was discharged the said services were not mentioned in the list of approved services, this cannot be a reason for rejection of refund claim as it is an avowed policy of the Govt of India that SEZ unit should not be burdened with any taxes in order to make them competitive. Since the procedural formality of receiving the UAC approval is also complete, the ratio of Mylan Laboratories Limited case will apply in full force to the case in hand. Refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund of service tax paid by the appellant on specified services in relation to authorized operations of the SEZ unit for the quarter January, 2014 to March, 2014; Rejection of refund claim based on services procured prior to UAC approval; Applicability of Notification No. 12/2003-ST; Eligibility for refund under reverse charge mechanism; SEZ unit's entitlement to refund under various provisions; Time limit for filing refund claims; Override of SEZ Act over other laws; Denial of refund claim based on time bar; Approval of services by UAC and Department of Commerce; CENVAT credit availed prior to approval; Unsustainability of impugned orders.

Analysis:
The issue at hand revolves around the appellant's refund claim of service tax paid on specified services for the SEZ unit's operations. The claim was rejected due to services being procured before UAC approval, with emphasis on Notification No. 12/2003-ST. However, the Tribunal's previous ruling in the case of Mylan Laboratories Ltd. established that SEZ units are eligible for refund under various provisions, even if service tax was paid under reverse charge mechanism. The Tribunal highlighted that SEZ units should not bear tax burdens to remain competitive, and the timing of service approval should not impede refund eligibility.

The Tribunal further cited the case of Mahindra Engineering Services Ltd., emphasizing that the SEZ Act's overriding effect on other laws supports refund claims in line with approved services. The time limit for filing refund claims was also discussed, with the Tribunal noting that the Assistant Commissioner has the authority to grant extensions, especially for first-time applicants. The Tribunal reiterated that denying refund when no service tax is payable under the SEZ Act would not serve justice.

Moreover, the Ministry of Commerce and Industries had published a default list of approved services, typically permitted by UAC unless specified otherwise. The appellant had received approval for services used in the SEZ, and CENVAT credit was availed before formal approval. As the procedural requirements were met, the Tribunal deemed the impugned orders unsustainable on merits, ultimately allowing the appeals. The judgment highlights the importance of SEZ units' tax entitlements, procedural compliance, and the overarching effect of the SEZ Act on refund claims.