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TMI Blog2019 (7) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with notification no. 14/2012-ST dated 20th June 2012, for refund of tax paid on services. 2. Appellant is a 'developer' approved by Government of India in accordance with the procedure laid down in Special Economic Zones Act, 2005 and is, under section 26 thereof, entitled to exemptions from duties of customs and central excise, chargeable on goods procured from outside India and from manufacturers in India, as well as from tax on services procured for rendering of 'authorised operations' as approved by the competent authority under the Act. While the duties on goods are exempted upfront on receipt in the notified area of the 'special economic zone', the peculiarities of monitoring intangible services required a special pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05. Reliance is also placed on the decision of the Tribunal in Wardha Power Company Ltd v. Commissioner of Central Excise, Nagpur [2018 (10) GSTL 248 (Tri-Mumbai)]. 4. Learned Authorised Representative contends that the impugned order cannot be faulted as the operational notification no. 40/2012-ST dated 20th June 2012 specifies in paragraph 3 (f) that the claim should be supported with 'bill or invoice or challan' and further states that rule 4A of Service Tax Rules, 1994 prescribes invoice for rendering of services. Citing the decision of the Hon'ble High Court of Jharkhand in Manpreet Engineering & Construction Co v. Union of India [2016 (44) STR 384 (Jhar)] and, in particular, on '(III) It appears on perusal of VCES, 2013 that the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or the purpose of the service, so rendered. It is solely on the ground of the claim having been supported with 'debit notes' and, that too, without being serially numbered, instead of furnishing invoices, that the rejection was ordered. It is the emphasis placed on the notification no. 40/2012 dated 20th June 2012 that led to this conclusion. 6. The entitlement of the appellant for exemption is, thus, undisputed. We have no doubt that, as submitted by Learned Authorised Representative, 'substantial compliance' has no place in a taxing statute. However, that particular injunction was rendered in the context of an amnesty scheme in which the tax liability was being waived. Per contra, in the present instance, the appellant's eligibility is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re borne by record to this effect, the burden of proof is on the person, who alleges, to bring out a case for defence of the other side. In absence of proper enquiry being conducted to bring out that the service was not utilized or the evidence adduced was insufficient nor there was any evidence, it is not possible to be appreciated that the appellant was disentitled to the benefit of refund. Learned Authority suspiciously acted as is coming out from para 5.1 of the show cause notice and denied refund. Therefore appellant shall not be denied benefit of tax exemption on this count. Similarly in paras 5.2, 5.3, 5.4, 5.5, 5.9, 5.13 and 5.16, disallowances were made on suspicion holding that it was beyond imagination that the service has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orised operations in a Special Economic Zone. Further, sub-section (2) of Section 26 of the Act empowers the Central Government to prescribe the manner, terms and conditions for providing the exemptions or benefits to the developer or entrepreneur under sub-section (1). In exercise of the powers conferred by Section 55 of the SEZ ACT, the Central Government has made the SEZ Rules, 2006. Rule 31 of the said rules provides that the exemption from payment of service tax on taxable services specified in Section 65 of the Finance Act, 1994 should be available to a developer or a unit for the authorised operations in a Special Economic Zone. 7. On perusal of the provisions contained in Section 26(2) of the Act read with Rule 31 of the Rules, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered view, rejection of refund application by the authorities below by placing reliance on the notification dated 3.3.2009 cannot be sustained and is liable to be set aside. In context with the amending Notification No. 9/2009 dated 3.3.2009 and 15/2009 dated 20.5.2009, this Tribunal in the case of Reliance Ports & Terminals Ltd. (supra) has held that the same notification has been issued to operationalise the exemption/immunity available to SEZ unit under Section 26(1)(e) of the SEZ Act, 2005. The relevant paragraphs in the said decision are extracted herein below: "7. From the provisions contained in Section 26(l)(e) of the SEZ Act, read with Rule 30(10) of the SEZ Rules, 2006, it can be seen that no Service Tax is payable on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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