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TMI Blog2018 (9) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... as held by the Commissioner(Appeals) - this ground on the basis of which refund claims have been rejected is not tenable. CENVAT Credit - rejection on the ground that appellant has availed the cenvat credit and hence he is not entitled to file the refund claim - Held that:- The appellant has already reversed the CENVAT credit without any utilization and it has been shown in ST-3 return filed for the period April 2015 to September 2015 and once he has reversed the CENVAT credit without utilization, it tantamounts to not taking credit - refund allowed. Appeal allowed - decided in favor of appellant. - ST/21497/2017-SM - Final Order No. 21311/2018 - Dated:- 4-9-2018 - Hon'ble Shri S. S. Garg, Judicial Member Shri Harish Bindumadhavan, Advocate For the Appellant Shri Pakshirajan, Asst. Commissioner(AR) For the Respondent ORDER Per : S.S GARG The present two appeals are directed against the common impugned order dt. 25/07/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeals of the appellant. Since the issue involved in both the appeals is identical and the impugned order is common, both the appeals are tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Wrong classification claimed / excess credit claimed because of calculation error / tax refund claimed but no tax was charged or paid for in the invoice. f. Date of payment for the input services is not available in the bank statement. g. Input service is cleaning whereas Facility Management or Disbursement is mentioned in the invoices. h. Service tax codes are not available on the invoices. In some cases, service tax registration number mentioned in the invoices do not belong to the service provider. i. Claims of ₹ 12,400/-, ₹ 12,354/- and ₹ 11,045/- claimed as maintenance and Repair Service whereas these are for supply of electricity, which is not in the approved Unit Approval Committee list. j. Invoice No.918711 dt. 27/11/2014 for ₹ 36,982/- not addressed to the SEZ. 2.3. Aggrieved by the said order, appellant filed appeals before the Commissioner(Appeals) and the Commissioner(Appeals) vide the common impugned order rejected the refund claims on two grounds; (i) approval from UAC was not obtained in respect of approved list of services by the appellant and (ii) condition of non-availment of CENVAT credit is mandatory as per Paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural and refund cannot be rejected for procedural infractions. Learned counsel placed reliance on the case of Mahindra Engineering Service Ltd. Vs. CCE, Pune-I [2014-TIOL-2534-CESTAT-MUM] wherein it has been held as under:- It is also noted that the SEZ Act, clearly provides under Section 50(1) that it will have overriding effect over the provisions of any other law. It is noted that Notification No. 9/2009 does not state that the list of services required in relation to authorized operations in the SEZ should be got approved from the approval committee before providing the services. 4.4. The appellant also relied upon the decision in the case of Mylan Laboratories ltd. Vs. CST, Hyderabad [2017-TIOL-3512-CESTAT-HYD] wherein it has been held as under:- The bone of contention in these appeals being that the service tax liability was discharged correctly and when it was discharged the said service tax liability was not mentioned in the list of approved services. In my view 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 . 4.5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und claims on other grounds which are not taken in the show-cause notices and therefore they have travelled beyond the showcause notices which is not legally permissible in view of various decisions cited supra by the appellant. Further I find that the impugned order also violates the principles of natural justice because the appellant has not been given the reasonable opportunity to defend himself on the ground on which the refund claims have been rejected. The other grounds on which the refund claims have been rejected by the impugned order is that the appellant has not produced the approved list of specified input services from the UAC of SEZ which is a mandatory condition as per the Commissioner(Appeals). In reply to this argument, the learned counsel submitted that in view of the settled legal position by various decisions relied upon by him, condition in respect of approval from UAC is not a mandatory requirement as the SEZ Act vide Section 51 of SEZ Act will have overriding effect over the provisions of any other law. Therefore keeping in view the intention of the Government in enacting the SEZ Act and giving special fiscal concessions to SEZs, I am of the considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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