9911796707
TMI Blog2023 (9) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... proval from the Development Commissioner, SEZ and were carrying out authorised operations in SEZ. According to the appellant, during the year 2013-14 their accounting software and data got corrupted and became unreadable and as a result of which they were not able to file their refund claim during that year. For the subsequent periods i.e. from year 2014 upto the year 2016 they failed to file refund claim for some input services invoices as they did not collate all the details of such invoices for this period while filing data as, according to them, the data was voluminous and all the requisite documents were not available at one place. 4. As per appellant, during the year 2017-18 they undertook thorough internal audit of all refund claims filed and correlated them with the invoices and at that time they realized that they have not filed the refund claims for the years 2013-14 to 2016- 17 and therefore belatedly they filed the refund claim of Rs.39,15,006/- on 28.3.2018 for the period 2013-14 to 2016-17 in accordance with the Notification No.12/2013-ST dated 1.7.2013 with request letter for condonation of delay in submission of service tax refund application, which resulted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification (supra) no power has been vested with the authorities concerned for condonation of delay as it specifically mentioned that 'the claim for refund shall be filed within one year from the end of the month in which actual payment service tax was made'. The notification (supra) is neither inconsistent with Section 26 nor section 51 ibid or Rule 31 ibid, rather it complements them. Learned Authorised Representative also submits that in support of certain refund claims the appellant failed to submit copy of bank statements evidencing payments made to the service providers and for certain refund claims they even failed to submit the copies of invoices despite ample opportunities granted to the appellant. 6. I have heard learned counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the written submissions/synopsis and case laws placed on record. The Special Economic Zones Act, 2005 (the 'SEZ Act') and Special Economic Zone Rules, 2006 (the 'SEZ Rules') contain the relevant procedures relating to SEZs. In order to appreciate the contentions advanced by learned Counsel and learned Authorized Representative, it wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over any other law/Act which is inconsistent with these provisions. It is pertinent to note that the Notification dated 1.7.2013 (supra), which lays down the conditions relied upon by Revenue herein, has been issued in exercise of the powers conferred under the Finance Act. Thus, when the services rendered by the appellant are fully exempted from service tax in terms of the provisions of the SEZ Act, which is complete code in itself, the condition for refund imposed under the Notification (supra) issued under the Finance Act are certainly inconsistent with the SEZ Act. A combined reading of Section 26(1)(e) ibid r/w Rule 31 ibid would show that the only condition required for availing exemption from payment of Service Tax by a SEZ unit/ Developer is that the taxable service should be used for carrying out the authorized operations by the SEZ Unit/Developer. There is no dispute that the operations of the appellant were authorised under the SEZ Act and there is no allegation anywhere that any of the conditions laid down under Rule 31 have been violated. 8. Another issue involved herein is whether there is any requirement of filing refund claim in same quarter under exemption Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exemption from payment of service taxes and the same cannot depend upon the conditions stipulated in the notifications issued under Section 93 of the Finance Act, 1994. Neither the SEZ Act nor the Rules framed thereunder, make the exemption available under the Act, subject to fulfillment of conditions stipulated in any other enactment including the Finance Act, 1994. Xxx xxx xxx 17. In the case on hand, there is no dispute on facts. The undisputed facts are : (1) that the 1st petitioner is a unit set up in GMR Aviation SEZ, (2) that the 1st petitioner is approved as a co-Developer vide Letter of Approval dated 20-9-2010, (3) that the 1st petitioner was issued with a certificate dated 29-9-2010 by the Development Commissioner to the effect that the services consumed within the SEZ for carrying out authorised operations are exempt from the levy of service tax, (4) that the 2nd petitioner is the Developer of GMR Aviation SEZ, as borne out by a certificate dated 31-5-2010 and a Letter of Approval dated 31-5-2010; (5) that as a Co-Developer, the 2nd petitioner entered into a sub-lease agreement with the petitioner on 1-6- 2010, for rendering the services of lease of land, supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table. 30. This is for the reason that Section 26(1) of the SEZ Act made the entitlement to certain exemptions subject to provisions of sub-section (2) of Section 26. Section 26(1) did not make the entitlement of a Developer to certain exemptions, subject to the provisions of something else other than the provisions of sub-section (2). Therefore, the 5th respondent cannot read Section 26(1) to mean that the exemptions listed therein are (1) subject to the provisions of subsection (2) of Section 26, and (2) also subject to the terms and conditions prescribed in the Customs Act, 1962, the Customs Tariff Act, 1975, the Central Excise Act, 1944, the Central Tariff Act, 1985 and the Finance Act, 1994. This is especially so, since the authority of the Central Government to prescribe the terms and conditions subject to which exemptions may be granted under Section 26(1), flows only out of sub-section (2) of Section 26. The word "prescribe" is verb. Generally no enactment defines the word "prescribe". But the SEZ Act 2005 defines the word "prescribe" under Section 2(w) to mean the rules framed by the Central Government under the SEZ Act, 2005. The space is also not left unoccupied, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). While Section 66 provides for levy of service tax on forward charge basis by the service provider, Section 66A provides for charge of service on reverse charge basis by the service recipient in certain cases. Section 66B provides for levy of service tax on all services other than those in the negative list after 2012. The levy and collection of these taxes and duties are further modified by some machinery provisions of these Acts, including those which enable the Government to issue exemption notifications Xxx xxx xxx 37. Thus, Section 26(1) of the SEZ Act is inconsistent with the three charging sections viz., Section 3 of the Central Excise Act, 1944, Section 12 of the Customs Act, 1962 and Sections 66, 66A and 66B of Chapter V of the Finance Act, 1994. In addition to the general principle of a specific law (pertaining to SEZ) prevailing over the general law (levying customs, central excise or service tax) and the later enactment (such SEZ Act, 2005) prevailing over the earlier enactments (Central Excise Act, 1944, Customs Act, 1962 and Finance Act, 1994), in the SEZ Act, the Parliament has explicitly resolved this inconsistency between the laws. Section 51 of the SEZ Act s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a service. The question before the Supreme Court was whether works contract service could have been taxed under various other heads prior to this date. The Supreme Court held that there was no charge on works contract service prior to 1-6-2007 because Works Contracts Services were a separate species of contract known to commerce and there was no levy on such contracts prior to 1-6-2007. It was pleaded on behalf of the Revenue that abatements were given through various exemption notifications. Supreme Court held as follows: 43. We need only state that in view of our finding that the said Finance Act lays down no charge or machinery to levy and assess service tax on indivisible composite works contracts, such argument must fail. This is also for the simple reason that there is no subterfuge in entering into composite works contracts containing elements both of transfer of property in goods as well as labour and services. 44. We have been informed by Counsel for the revenue that several exemption notifications have been granted qua service tax "levied" by the 1994 Finance Act. We may only state that whichever judgments which are in appeal before us and have referred to and dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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