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TMI Blog2015 (4) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... Pharma Ltd Vs CST [2013 (7) TMI 703 - CESTAT AHMEDABAD] and Tata Consultancy Services Ltd. [2012 (8) TMI 500 - CESTAT, MUMBAI] - Matter remanded back - Decided in favour of assessee. - Appeal No.ST /468,525/2011, ST/143,144,166/2012, ST/12939,13621/2013 - Order Nos. A/10108-10114/2015 - Dated:- 5-2-2015 - P. K. Das, Member (J) And R. K. Singh, Member (T),JJ. For the Appellant : Shri J C Patel, Adv. For the Respondent : Dr Jeetesh Nagori , Addl Commissioner (AR) ORDER Per: P K Das: 1. A common issue is involved in these appeals and therefore, all are taken up for disposal. 2. The relevant facts of the case, in brief, are that the appellants are engaged in the manufacture of Pharmaceutical products in Pharmaceutical Special Economic Zone, under the Special Economic Zone Act, 2005 read with Special Economic Zone Rules, 2006. The appellants, during the period of setting up of the plant, before starting the commercial production, received various services and paid the service tax. The appellant obtained a letter of approval from the Development Commissioner for setting up of the plant for manufacturing of the Medicaments. Notification No.4 /2004-ST, dt.31.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the Revenue that it was not consumed by them . It is also submitted that the service is intangible nature and therefore, there is no presumption that the service was not used in SEZ . It is submitted that whatever the services were used in the SEZ , it would be eligible for refund as per the SEZ Act and Rules as observed by the Tribunal in the case of Intas Pharma Ltd (supra) and it has a over-riding effect to the Act by the Notification. 4. On the other hand, the ld.Authorised Representative for the Revenue drew our attention of the Bench to the relevant portion of the Notification No.9 /2009. He submits that Clause (a) and (b) to the proviso of the said notification provides that the service should be used in the authorized operation in SEZ . He submits that Clause (a) of proviso to Para 2 of the said notification provides that the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, after sufficient satisfaction that the said services have been actually used in relation to authorized operation in SEZ , refund of service tax paid in SEZ service used in relation to the authorized operation in the SEZ , would be allowed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured in small trial batches and thereafter, sent for testing and analysis purpose. Undisputedly, when the goods are removed for testing and analysis, excise duty has been paid thereon. Since production of medicaments are subject to approval by the regulatory authorities of various countries to which such drugs are exported, the assessee is required to obtain approval before starting commercial production. Thus the final product can be manufactured only upon approval of the regulatory authority after the product undergoes technical testing and analysis. Under the circumstances, it cannot be gainsaid that the activity of testing and analysis of the trial batches is in relation to the manufacture of final product. Unless such testing and analysis is carried out, it would not be possible to produce the final product inasmuch as unless the trial batches are sent for testing and analysis and approval is obtained, the final product cannot be manufactured. Under the circumstances, the services availed in respect of technical testing and analysis services are directly related to the manufacture of the final product. The contention of the department that unless the goods have reached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ , as recipients of taxable service are enabled the facility of claiming refund of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ . On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These Notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph 'c' of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ , from seeking refund of Service Tax remitted on such transactions, by the providers of such services. 12. Therefore, the rejection of the appellant's c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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