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TMI Blog2024 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... Zone Rules cannot be denied only on procedure requirement under Notification No. 9/2009 dated 03.03.2009 as amended by Notification No. 15/2009 dated 20.05.2009. The services received by the appellant from their foreign based agents who were engaged in promotion of sales abroad though chargeable to Service Tax under category of Business Auxiliary Service under reverse charge mechanism basis by virtue of exemption Notification No. 9/2009-ST dated 03.03.2009 as amended by Notification No. 15 of 2009-ST dated 20.05.2009 and by general exemption for Special Economic Zone units provided under Section 26 of the Special Economic Zone Act, 2005, the services received from abroad shall remain exempted and therefore, the demand raised against the appellant is without any merit. Extended period of limitation - SCN issued by the department invoking extended time proviso under Section 73(1) of Finance Act, 1994 as the show cause notice was issued on 19.09.2014 for the period April 2009 to March 2011 - HELD THAT:- All the transactions of foreign exchange payment were reflected in their books of account and the by taking necessary permission from the Reserve Bank of India. In view of this the el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeal) vide impugned Order-In-Appeal dated 01.12.2015 rejected the appeal of the appellant and against the same they are before us. 2. The learned Advocate appearing for the appellant submitted that the appellant is located in Kandala Special Economic Zone (SEZ) and are registered with Serviced Tax department for receiving various services such as business consultancy service, consulting engineer service, business auxiliary services, legal consultancy services, transport of goods by road services etc. It has been mentioned by the learned Advocate that certain payment have been made by the appellant as sales commission on export of the goods outside India to foreign based agents for promoting their sales outside India. It has further been mentioned that the department has confirmed Services Tax under Business Auxiliary Service under reverse charge mechanism basis as provided under Section 66A of the Finance Act, 1994. 2.1. It has been contention of the learned Advocate that as per the provisions of Notification No.9/2009-ST dated 03.03.2009 and vide Notification No. 15/2009-Service Tax dated 20.05.2009. The Government of India has provided exemption from the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem to the audit party that the technical issue has been made out by the department for demanding Service Tax under Business Auxiliary Service. The learned Advocate cited the Hon ble Supreme Court decision in case of Ms. Nizam Sugar Factory vs. CCE reported under the 2006 (197) ELT 465 Supreme Court to emphasize their arguments on this issue.. 3. We have also heard Shri A R Kanani, Superintendent (AR) reiterated the findings as given in the impugned Order-In-Appeal. 4. We have heard both the sides and we find that by virtue of Notification No. 9/09-ST dated 03.03.2009, it has been provided that the developers or unit of Special Economic Zone shall be exempted from payment of Service Tax by way of refund of Service Tax paid on the specified services used in relation to authorized operations in the Special Economic Zone. Thus, it is clear that unit of the Special Economic Zone was entitled for refund of the Service Tax paid by them for authorized operations. This exemption notification dated 03.03.2009 was amended within a short period on 20.05.2009 by notification No. 15/2009-ST dated 20.05.2009 by the virtue of this amendment a complete exemption has been provided from payment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been provided under the above Section 26 of the Special Economic Zone Act. Once the legislature by way of enactment has provided certain exemption we feel that any notification issued under any other enactment will not take away the right of the exemption from payment of the Service Tax to the appellant for the activity while falls under category of the authorized operations within a Special Economic Zone. 4.2. In this regards we also rely upon this Tribunal s decision in case of SRF Limited Vs. Commissioner of Customs, Central Excise and Service Tax LTU New Delhi reported under 2022 (64) GSTL 489 Tribunal-Delhi. 36. Special Economic Zones created under the SEZ Act are on a different footing because the SEZ Act itself exempts goods and services supplied for authorised operations to developers and units in the SEZs from the Customs Duty, Central Excise Duty and Service Tax. The provisions of SEZ Act prevail over any other law, Section 26(1) of the SEZ Act, 2005 reads as follows: 26. (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur shall be entitled to the following exemptions, drawbacks and concessions, namely:- (a) exemption from any duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Finance Act, 1994 will not apply to goods and services supplied to developers and units for authorized operations in the SEZ areas by virtue of the overriding provisions of the SEZ Act. Any exemption notifications and conditions therein are therefore, redundant because, the Parliament itself has through Section 51 of the SEZ Act, overridden the charge in the other laws. 4.3. In view of above we are of the view that the services received by the appellant from their foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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