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TMI Blog2013 (12) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... this ground is bad in law and is accordingly set aside. In the case of services which are wholly consumed within the SEZ, there is no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitled for refund of the service tax paid under the provisions of Section 11B of the Central Excise Act, 1944 r.w.s. 83 of the Finance Act, 1994. If the appellant is eligible for refund u/s 11B, then the same cannot be denied on the ground that the claim was made under Notification No. 09/2009-ST - Following decision of TATA CONSULTANCY SERVICES LTD Versus COMMISSIONER OF CENTRAL EXCISE & ST (LTU), MUMBAI [2012 (8) TMI 500 - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. These show cause notices were adjudicated by the original adjudicating authority vide Order in Original 05/2010 dated 26.02.2010 and 13/2012-13 dated 06.09.2012 under which claims of the appellant for Rs.1,93,838/- and Rs. 90,338 were rejected. Appellants preferred appeals before Commissioners (Appeal) who vide aforesaid Order in Appeal rejected their appeals. Appellants have challenged these impugned orders in the present appeal. 5. Heard both sides. 6. I find that refund claims have been filed by the appellants under provisions of Notification No. 09/2009 dated 03.03.2009. I find that Notification 9/2009 dated. 03.03.2009 exempts taxable services which are provided in relation to authorized operation in SEZ, received by a develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before this Tribunal in case of Tata Consultancy Services representation 2013(29) STR 393 (TRI-Mumbai) and Tribunal held. 6.2 Coming to the next question, whether in respect of the services which were wholly consumed and which were fully exempt from payment of duty whether the appellants can be granted under Notification No. 9/2009-S.T., dated 3-3-2009 as amended by Notification No. 15/2009-S.T., dated 20-05-2009 through which amendment a condition was inserted stating that the refund procedure prescribed under the said Notification shall apply only in the case of services used in relation to the authorized operations in the SEZ except for services consumed wholly within the SEZ. This view of the department is also incorrect. Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation. 6.3 Services provided to a SEZ or unit in the SEZ is deemed as export as per the provisions of Section 2(m) )ii) of the SEZ Act, 2005 and as per Rule 31 of the SEZ Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided to a unit in the SEZ. As per Section 51 of the said SEZ Act, the said provisions prevail over the provisions contained in any other law for the time being in force. It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized broader view of the provisions relating to refund has to be taken. Therefore, even if the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be used in relation to authorized operation. (vii) Security Charges : Address mentioned in the invoices does not pertain to SEZ unit. 9. I also find that there is no break up of refund claims showing how much has been rejected on the ground of services wholly consumed in SEZ and how much on other services. Also refund claim is rejected for want of verification of invoices and also nexus of service to authorized operation. 10. I therefore, remand the case back to original authority to examine the claim in light of Judgment of Tribunal is case Tata Consultancy Services (Supra) and appellants should provide all details/evidence in respect of seven services to substantiate their claims that there services were used in authorized opera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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