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TMI Blog2024 (1) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2010 (255) ELT 518 (Guj.) wherein, the Hon ble High Court of Gujarat approved the course of action, whereby in the absence of original invoice, photocopy duly verified by the Range Superintendent was directed to be accepted. This Court decides accordingly and directs that the photocopy of invoice can be taken as evidence of underlying transaction, if the same is got verified by the department/appellant party in the matter. On this issue, the matter is accordingly remitted. Retrospective application of approval of certain operations when granted by the executive authorities under SEZ Act - Administrative discretion of authorities - HELD THAT:- This Court finds that any given approval of specified or applied operations to a Developer or unit is prerogative of the executive authority under SEZ only. This Court, therefore, in the absence of any such decision of the executive authority of the SEZ Act having been brought on record, is not inclined to exercise discretion not particularly vested in this Court. Matter is therefore remitted back to the original authority, on this issue too with direction to seek clarification on this aspect from the office of Development Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Non-submission of original invoices. Appeals at the Sr. No. 1,2,3, 7 have issue at the core of relevant operation/services not having been approved by UAC/BOA when refund was filed while Sr. No. 2,3,4,5,6,7 have an issue of original invoice not having been produced, as is the statutory requirement. 2. Department thus proceed on the basis that since approval of Approval Committee of specified services as on the date of filing of refunds was not available and had not even been applied for same, were rejectable. Even though on the date when refunds applications came to be considered, such services had come to be included by the Unit Approval Committee/ BOA. Main Plank of the arguments of the appellant is that such approval operates retrospectively even when the impugned services were not included on 21st May 2013 i.e. date of refund application. Inclusion of services was applied for on 7.11.2013 and approval was eventually granted on 27.04.2014. Other point on which rejection has taken place for Sr. No. 2,3,4,5,6,7 as above, is that invoice in original for bill for a challan along with proof of payment specified services as is requirement under para 3(F)(ii) could not be provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the time of one week given to both sides to make further written submission, the authorized representative of the department availed the opportunity to make written submissions as follows: 5.1 The appellant prefers above said appeal before Hon'ble Tribunal against order of Commissioner (A) rejecting claim of refund of Service tax paid on services used by them at SEZ. 5.2 The appellant is engaged in SEZ operations as well as DTA operations therefore the services received cannot be considered as wholly consumed within the SEZ. In terms of Section 11 AB of Central Excise Act. 1994, made applicable under Section 83 of Finance Act, 1994, the appellant had not submitted any valid documents/proof to establish that they had not passed the incidence of payment, the services received cannot be considered as wholly consumed within SEZ. Here it is observed that the appellant had failed to fulfilled the condition of Notification No. 40/2012-ST dated 20.06.2012, It is mentioned in Para 3 (f) (ii) that; (f) the refund claim shall be accompanied by the following documents, Namely :- .. (ii) Invoice or a bill or as the case may be, a challan, issued in accordance with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise ST (LTU), Mumbai Zydus Tech Ltd. Vs. Commissioner of Service Tax, Ahmedabad 2014 (7) 1014 - CESTAT Ahmedabad. (Relevant Paras-7) M/s. DIC Fine Chemicals Pvt. Ltd. Vs. C.C.E. S.T. - Vadodara-II - 2022 (12) TMI 1193 - CESTAT Ahmedabad. (Relevant Paras- 4 4.1) Commissioner of Central Excise, Mangalore Commissionerate v. Mangalore, SEZ Ltd., 2017 (49) S.T.R. 311 (Tri. Bang.) (Relevant Paras-5) M/s. EXL Services BPO Solutions (P) Ltd. Vs. CC CCE, Noida, 2023 (9) 196-CESTAT Allahabad (Relevant Paras- 4.1 to 4.5) 8. It is submitted that in Instruction No.79 and 83, nowhere it has been mentioned that the services approved would be considered effective from the very date of the instructions. Since the Appellant had list of approved services before the above-mentioned list of common services came into existence, it ought to be considered that the effective date for the above default list of common approved service is from the date of the previous approval list of services and therefore the outdoor catering service ought to be considered an approved service in the present case. 9. The Appellant submits that in relation to service category Club and Membership Service provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t prejudice to above and even otherwise, it is submitted that mere non mentioning of the aforesaid services in the Approved List is only a technical defect and it should not debar the substantive benefit to the assessee who has utilized those services for carrying out authorized operation. Reliance is placed upon the following decisions: Harman Connected Services Corporation India Pvt. Ltd. Vs. CST, Bengaluru East, 2021 (49) G.S.T.L. 11 (Tri. Bang.) [Relevant Paras- 6 7] Mast Global Business Service India Pvt. Ltd. v. Commissioner 2018 (9) TMI 258 - CESTAT, Bangalore [Relevant Paras- 2, 4.2, 4.3] Tega Industries Ltd. Vs. CCE, Vadodara-II, 2022 (67) G.S.T.L. 81 (Tri. Ahmd.) [Relevant Paras- 4.2 and 4.3] Divi's Laboratories Ltd. Vs. CST, Vishakhapatnam, 2021 (54) G.S.T.L. 400 (Tri. - Hyd.) [Relevant Paras-12 to 16] SE Forge Ltd. Vs. CCE, Coimbatore, 2019 (365) E.L.T. 560 (Tri. - Chennai) (Relevant Paras-5) NON-SUBMISSION OF ORIGINAL INVOICE IS ONLY A PROCEDURAL LAPSE WHICH WILL NOT LEAD TO DENIAL OF SUBSTANTIVE BENEFIT TO APPELLANT 14. The Appellant submits that the refund claim of the Appellant cannot be denied on the ground of non-availability of original invoices when the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 38. Thus, insofar as supplies for authorised operations of SEZ developers and units are concerned, Section 26 of the SEZ Act overrides the charging sections in all the three Acts. 39. The charging sections, having been overridden by the SEZ Act passed by the Parliament, no legal authority to levy and collect central excise duty, customs duty or service tax for goods or services supplied for authorised operations of SEZ developers and units covered by Section 26 remains. Without such a legal authority, no tax or duty can be either levied or collected in view of Article 265 of the Constitution of India. 40. Therefore, there is no need for any exemption notifications under any of these three Acts nor is it necessary to fulfil any conditions of any of the conditions laid down in exemption notifications, if any, issued for the purpose. Thus, the charge of excise duty under Section 3 of the Central Excise Act, the charge of Customs Duty under Section 12 of the Customs Act and the charge of service tax under Sections 66, 66A and 66B of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SEZ Act, 2005 also. Section 50 of the SEZ Act, 2005 enables State Governments to enact laws for the grant of exemption from state taxes, levies and duties. Since a Central Law cannot provide for exemption from the levy of State taxes, Section 50 merely enables the State Governments to enact laws. 32. A combined reading of Sections 7, 26 and 50 of the SEZ Act, 2005, would show that SEZ Act, 2005 speaks of three different types of exemptions. They are, - (1) exemption from payment of taxes under the enactments specified in the First Schedule, in respect of goods and services exported out of, or imported into or procured from a DTA by a unit in a Special Economic Zone or a Developer under Section 7, (2) exemption from payment of duties under the Customs Act, 1962, Customs Tariff Act, 1975, Central Excise Act, 1994, Central Excise Tariff Act, 1985, Finance Act, 1994, Finance (No. 2) Act, 2004 and Central Sales Tax Act, 1956, covered by Section 26 (1); and (3) exemption from payment of state taxes, levies and duties covered by Section 50, provided there is a state enactment to the said effect. 33. The word prescribe is used in the present tense in Section 26(2) and in the past tense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one, such operations which the Central Government may authorize. 21. The fact that the services rendered to the Developer are exempted under Section 26 of the SEZ Act is also supported by Rule 25 and Rule 31 of the SEZ Rules, which reads as under: Section 25- Where an entrepreneur or Developer does not utilize the goods or services on which exemptions, drawbacks, cess and concessions have been availed for the authorized operations or unable to duly account for the same, the entrepreneur or the Developer, as the case may be, shall refund an amount equal to the benefits of exemptions, drawback, cess and concessions availed without prejudice to any other action under the relevant provisions of the Customs Act, 1962, the Customs Tariff Act, 1975, the Central Excise Act, 1944, the Central Excise Tariff Act, 1985, the Central Sales Tax Act, 1956, the Foreign Trade (Development and Regulation) Act, 1992 and the Finance Act, 1994 (in respect of service tax) and the enactments specified in the First Schedule to the Act, as the case may be: Provided that if there is a failure to achieve positive net foreign exchange earning, by a Unit, such entrepreneur shall be liable for penal action under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even when the refund was applied. Unlike the decision quoted by the appellants in their own case wherein as on the date of application such approval had at least been sought for from the relevant authority on the date of seeking refund. Even otherwise at the core, is the issue as to whether such retrospectivity to an executive action of statutory authorities under SEZ Act can be granted by this Tribunal or needs to be considered only by the executive authority under that act i.e. the Development Commissioner/UAC/Board of Approval under SEZ Act. As far as the issue relating to non production of invoice and alternate course available to the appellant. This Court finds support from the decision of Commissioner of Central Excise and Customs Vadodara-II vs. Steel co Gujarat Ltd. reported in 2010 (255) ELT 518 (Guj.) wherein, the Hon ble High Court of Gujarat approved the course of action, whereby in the absence of original invoice, photocopy duly verified by the Range Superintendent was directed to be accepted. This Court decides accordingly and directs that the photocopy of invoice can be taken as evidence of underlying transaction, if the same is got verified by the department/appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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