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TMI Blog2024 (4) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... ided PC Pipe Rack Erection work to M/s. ONGC Petro Additions Limited and consequently availed exemption from service tax as per Notification No.9/2009-ST dated 03.03.2009 as amended by Notification No. 15/2009-ST dated 20.05.2009 and other amendments. The department has undertaken audit of the financial records of the appellant and it was pointed out that appellant had failed to furnish authorization in terms of Form A-1 and A-3 and therefore, they are not entitled to exemption as per Notification No. 09/2009-ST dated 03.03.2009 as amended. A show cause notice came to be issued which was adjudicated by the impugned order-in-original dated 16.05.2016 by which service tax amounting to Rs. 3,85,72,267/- has been confirmed against the appellant. Penalty under Section 78(1) of the Finance Act, 1994 has also been imposed on the appellant with confirmation of recovery of interest. The appellant are before us against the impugned order-in-original. 2. Shri Saurabh Dixit, learned advocate appearing for the appellant submits that the service provided by a subcontractor to a unit located in SEZ is eligible for exemption benefit in terms of Notification No. 9/2009-ST dated 03.03.2009 as amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to a unit located in SEZ Area which is an admitted fact by the department also and therefore a substantive benefit provided by the legislature cannot be withheld only for some procedural infringements. 3. We have heard Shri SS Vikal, learned Assistant Commissioner (AR) who has reiterated the findings as given in the impugned order-in-original. 4. Having heard both the sides, we find that only question which needs to be answered by us is whether the appellant being a subcontractor to the main contractor M/s. Samsung Engineering Company Limited which was appointed for rendering certain services to M/s. ONGC, located at SEZ Dahej, is entitled for the benefit of Notification No. 9/2009-ST dated 03.03.2009 as amended by various notifications being a subcontractor. Before proceeding further in the matter it will be relevant to reproduce here the arguments on which the demand has been confirmed by the learned Adjudicating Authority in order-in-original :- "22.6. I therefore find that from the overall facts of the case seen in the light of the existing provisions, in-admissibility of the exemption on the taxable services provided by a sub contractor to the Contractor of a SEZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding certain goods and services to them, irrespective whether the services directly provided by the main contractor or the main contractor has appointed a subcontractor makes no difference since the service has been rendered to SEZ Unit, the benefit of exemption notification is available to the appellant. While holding the above view, we take note of this Tribunal's decision in the case of M/s. Shyam Engineers Final Order No.12201/2023 dated 07.08.2023. The relevant extract of the same is reproduced below:- "5. We have carefully considered the submissions made by both the sides and perused the record. We find that Revenue has denied the exemption on payment of service tax under Notification No. 09/2009-ST only for the reason that the appellant being a sub-contractor, have not provided service directly to the SEZ unit or developer of SEZ. On perusal of notification, we find that notification prescribes that the service which are provided in relation to authorised operation in SEZ and received by a developer or unit of SEZ are exempted from whole of service tax. As per this plain reading of the notification, the only criteria is that the service which is provided, should be in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of the Revenue is that the respondent had never provided services directly to the SEZ unit but was contracted as a sub-contractor to provide services to a unit in SEZ. Hence, the benefit of Notification No. 4/2004-S.T. is not applicable. It is undisputed that during the period 1-4-2005 to 31-3-2009 the respondent had rendered various services to the unit situated in SEZ and being developed by the SEZ developer. It is also undisputed that appellant was a sub-contractor. On this factual matrix, we have to now consider the Notification No. 4/2004-S.T. which reads as under : "Service tax exemption to services provided to a Developer or units of Special Economic Zone - Notification No. 17/2002-S.T. superseded In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) and in supersession of the notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue), No. 17/2002-Service Tax, dated 21-11-2002, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated 21-11-2002, vide, G.S.R 777(E), dated 21-11-2002, except as respects things don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce issued needs to be dropped. We also find as regards taxability of the service rendered to the SEZ developer was in dispute before this Tribunal in the case of Sujana Metal Products Ltd. v. Commissioner of Central Excise - 2011 (273) E.L.T. 112 (Tri.-Bang.) and this Tribunal came to a conclusion that where the services are rendered to SEZ or a unit in SEZ, as long as it is rendered for consumption in a Special Economic Zone, the services are exempt. We also note that the provisions of Section 26 of the Special Economic Zone overrides provisions of other law and exempts any services or taxes if the same are consumed in Special Economic Zone. 7. In view of the foregoing and the authoritative judicial pronouncement, we find no merits in the appeal filed by the Revenue and the same stands rejected and hold impugned order is correct and legal and does not require any interference. cross-objection is also disposed of." Sudhir Chand Jain vs. Commissioner of Central Excise, Ghaziabad - 2018 (8) GSTL 302 (Tri.All) "6. Having considered the rival contentions I hold that the appellant as sub-contractor have provided service through their contractor M/s. Anurag Enterprises for const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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