9911796707
TMI Blog2017 (10) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... er Mr. K. S. Ravi Shankar Mr. N. Anand, Advocates For the Appellant Mr. N. Jagadish, AR For the Respondent ORDER Per : Ashok K. Arya M/s. Infosys Ltd. has filed these four appeals against common Order-in-Appeal No. 169-173/2016 dated 1.11.2016 whereunder various refund claims of the appellant have been denied. 2. The brief facts are that: (i) The appellant operates in Special Economic Zones (SEZs) at various places in India. (ii) These appeals pertain to refund claims made by them seeking refund under the SEZ Act, 2005 read with Service Tax Notifications No.9/2009-ST and 15/2009-ST (amending Notification). (iii) The appellant paid service tax to suppliers of services under the said Notifications, which enable post payment refunds to be claimed. (iv) The claims were partially allowed by the adjudicator holding part disallowance due to the amending Notification. (v) On first appeal, the adjudicator s orders were confirmed against which the present appeals are filed. It was held by the first appellate authority that due to amending Notification No.15/2009-ST refund was not available due to limited scope of the exemption. 3. Both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, under the Central Excise Act, 1944 or the Central Excise Tariff Act, 1985 or any other law for the time being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) drawback or such other benefits as may be admissible from time to time on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) exemption from service tax under Chapter-V of the Finance Act, 1994 on taxable services provided to a Developer or Unit to carry on the authorised operations in a Special Economic Zone; (f) exemption from the securities transaction tax leviable under section 98 of the Finance (No. 2) Act, 2004 in case the taxable securities transactions are entered into by a non-resident through the International Financial Services Centre; (g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers under the Central Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nomic Zone; (c) the exemption claimed by the developer or units of Special Economic Zone shall be provided by way of refund of service tax paid on the specified services used in relation to the authorised operations in the Special Economic Zone; (d) .. (e). . (f) 2 .................. 3. The exemption contained in this notification shall apply only in respect of service tax paid on the specified services on or after the date of publication of this notification in the Official Gazette. 6.3 The Notification No.15/2009-ST dated 20.5.2009 amends the Notification No.9/2009. The relevant parts of this Notification are given herein below: Notification No. 15/2009-Service Tax dated 20-May-2009 Exemption to taxable services provided to a developer or unit of Special Economic Zone Notification No.9/2009-S.T., amended In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.9/2009-Service Tax, dated the 3rd March, 2009 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly outside SEZ. 3 to 10 .... 6.5 Further, various decisions of the Tribunal gives support to the admissibility of the refund claims filed by the appellant. These decisions also make reference to the relevant provisions of law, consequent to which the appellant is entitled to the subject refund claims. The tribunal in the case of Reliance Industries Ltd. vs. CCE, Mumbai: 2016 (41) STR 465 (Tri.-Mumbai) has inter alia observed as under: 3.10 The two notifications, in conjunction, have given effect to the statutory promise by devising two methods for availing the exemption - by upfront exemption when the service is rendered within the geographical boundaries of the Special Economic Zone and by the refund route where the physical performance of service is not within the boundaries but is intended for the authorized operation of the developer or unit. A pre-approval and verification system was also established in the same notifications - necessitated by the potential for wrongful availment arising from the intangibility of services. 3.11 3.12 3.13 3.14 3.15 Later decisions of the Tribunal on dispute that arose, notwithstanding the notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is eligible for refund under Section 11B, then the same cannot be denied on the ground that the claim was made under Notification No. 9/2009-S.T. In this case, there is no dispute that the services were provided in relation to the authorized operations of the appellant within the SEZ. From the records it is seen that the appellant has filed the refund claim within the time period provided for in Section 11B and the appellant has borne the incidence of taxation. 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 appellant is 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, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon the judgment of Intas Pharma Ltd. v. CST, Ahmedabad (supra) holding that in view of the provisions of Sections 7, 26 and 51 of 2005 Act [SEZ Act, 2005], exemption to services provided to a SEZ were always (available and Notifications No. 9/2009-S.T. and No. 15/2009-S.T. have only operationalized the exemption provided. Para 11 of the above judgment is reproduced below : 11. On true and fair construction of Notifications 9/2009 and 15/2009 issued under section 93(1) of the Act, considered in the light of overarching provisions of Sections 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Notification 9/2009 nor 15/2009 disentitle immunity to service tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalized. Notification Nos. 9/2009 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m that was agreeable to Revenue. Disregard of parliamentary intent to levy a tax or exempt a tax cannot be brooked under any circumstance. A harmonious construction of the exemption Notification 4/2004-S.T., dated 31st March, 2004 that preceded the Special Economic Zones Act, 2005 with that Act must perforce be the facilitative mechanism in the absence of any other. A misconceived notion, as entertained by the lower authorities about that distinction between the corporate office address and the site address, should not be allowed to hold sway when confronted with the factual matrix of its exclusive existence in a Special Economic Zone; consequently, there can be no doubt that the services provided by M/s. NSDL was for the authorized operations in a Special Economic Zone. 3.19 For the above reasons, the appeal is allowed and the appellant is entitled to refund of service tax as claimed by them. 7. Considering the provisions of law mentioned earlier and the Tribunal s decision in the case of Reliance Industries Ltd. (supra), the impugned order is set aside and the appeals are allowed with consequential relief to the appellant. ( Order was pronounced in open court on 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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