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TMI Blog2024 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty and Customs duty), exemption notifications were also issued by the Government under the respective laws with some conditions. The exemption notifications in dispute in this case are service tax exemption notifications ST-40/2012 dated 20.06.2013 and ST12/2013 dated 01.07.2013. This Tribunal also in the case of M/S. DLF ASSETS PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER OF GOODS SERVICE TAX, DELHI NORTH [ 2023 (7) TMI 881 - CESTAT NEW DELHI] , has considered the issue as to whether the services rendered by the appellant to units in SEZ would be exempted from payment of service tax in view of the provisions of the SEZ, Act and the notification to this effect.The Tribunal in this decision has held ' The prescribed manner as mentioned in Section 26(2), has been provided under Rule 31 of the SEZ Rules, whereby it is stated that exemption from payment of service tax shall be to any service provider for the authorized operations in a Special Economic Zone.' The notification has imposed a condition which is contrary to the overall exemption provided in the statute itself by virtue of Section 26 read with Rule 31. The exemption notification cannot override the statue - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred as SEZ) buildings to display their name and signs. The appellant had booked this income as signage income and had classified the service as Renting of Immovable Property Service , however, had availed exemption from payment of service tax by claiming their activity as specified service in terms of Notification No. 09/2009-ST dated 03.03.2009 read with Notification No. 17/2011-ST dated 01.03.2011. The department formed an opinion that service of display of signage is properly classifiable under the category of sale of space or time for Advertisement Service which is not a specified service for the authorised operation in SEZ, for the purpose of claiming exemption from payment of service tax in terms of the aforesaid notification. The department also observed that alleging nonpayment of service tax on signage income following earlier show cause notices have been issued to the appellant: S. No. SCN No./File No. Dated Period Involved Amount Involved O.I.O 1. 65/Audit/2013-14 15.10.2013 2007-08 to 2011-12 9,20,54,853/- 28.12.2015 2. 52/Div-I/2014-15 06.05.2014 2012-13 6,90,859/- 31.01.2017 3. 13/Div-I/2015 17.04.2015 2013-14 8,79,597/- 06.07.2023 2. For the impugned perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal adjudicating authority itself. The demand with respect to signage income has also been dropped by this Tribunal in the appellant s own case titled as M/s. DLF Assets Pvt. Ltd. Vs. Commissioner of Service Tax, Delhi-I reported as 2020 (11) TMI 35-CESTAT New Delhi 4.1 Learned counsel further impressed upon that even reliance upon any of the notification is not relevant for seeking exemption from payment of service tax as the said exemption flows from the SEZ Act itself in terms of Section 26 of Special Economic Zone Act, 2005 (hereinafter referred as SEZ Act). Sub-clause 1(e) of Said Section 26 is impressed upon. The applicability of Notification 9/2009-ST is also redundant, in view of sub-section (2) of Section 26, according to which the exemption etc. has to be provided as per the manner prescribed by the Central Government and prescribed in terms of Section 2 (w) of SEZ Act means prescribed by the rules made by Central Government under SEZ Act , hence reliance of the adjudicating authority below upon the notifications and the alleged non-compliance thereof for denying the tax exemption benefit to the appellant is not sustainable. Learned counsel has also submitted that the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion. There is no infirmity in the order under challenge which has upheld the aforesaid findings of Order-in-Original. With these submissions, the appeal is prayed to be dismissed. 6. Having heard the rival contentions and perusing the entire records, The question to be adjudicate in the impugned appeal is: Whether appellant is entitled for tax exemption on signage income received while renting out space for the signages to the units in the SEZ area. 7. To adjudicate the issue, foremost we need to understand the concept of SEZ under SEZ Act. Section 51 of SEZ Act states that the provisions of this Act shall have effect notwithstanding anything inconsistent there with, contained in any other law for the time being in force or in any instrument having affect by virtue of any law other than this Act. According to Section 2(c), authorized operations means operations which may be authorized under subsection (2) of section 4 and sub-section (9) of section 15 of. For ease of reference, we reproduce these two sections below: 4. Establishment of Special Economic Zone and approval and authorisation to operate it to, Developer- (1) The Developer shall, after the grant of letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me prescribed therefore: Provided that an appeal may be admitted after the expiry of the period prescribed therefore if the appellant satisfies the Board that he had sufficient cause for not preferring the appeal within theprescribed time. (6) Every appeal made under sub-section (4) shall be in such form and shall be accompanied by a copy of the order appealed against and by such fees as may be prescribed. (7) The procedure for disposing of an appeal shall be such as may be prescribed: Provided that before disposing of an appeal, the appellant shall be given a reasonable opportunity of being heard. (8) The Central Government may prescribe,- (a) the requirements (including the period for which a Unit may be set up) subject to which the Approval Committee shall approve, modify or reject any proposal referred to in sub- section (3); (b) the terms and conditions, subject to which the Unit shall undertake the authorised operations and its obligations and entitlements. (9) The Development Commissioner may, after approval of the proposal referred to in sub- section (3), grant a letter of approval to the person concerned to set up a Unit and undertake such operations which the Development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Section 26; its operations must be authorised by the Development Commissioner under Section 9 and it should meet the manner, terms and conditions prescribed under the SEZ Rules. For exemption from the service tax, the concerned SEZ Rules are Rules 22 and 31. 9. We also observe that while the SEZ Act itself provides for exemption from service tax (as well as Central Excise duty and Customs duty), exemption notifications were also issued by the Government under the respective laws with some conditions. The exemption notifications in dispute in this case are service tax exemption notifications ST-40/2012 dated 20.06.2013 and ST12/2013 dated 01.07.2013. This duplication of exemption under the two provisions viz, SEZ Act and Rules and under exemption notifications under the Finance Act, 1994 has been discussed at length. Hon ble Andhra Pradesh High Court in the case of GMR Aerospace Engineering Limited and another Vs. Union of India and Ors. reported as 2019 (8) TMI 748 , observed as follows: 22. It may be noted that sub-section (1) of section -26 begins with the words subject to the provisions of sub-section (2) . Sub-section (2) authorizes the Central Government to prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Terminals Limited Vs. CCE, Rajkot, 2013-TIOL-1473-CESTATAHM, This Tribunal negated the view of the department and held that there was no requirement to pay service tax and then claim refund since the SEZ Act itself provides for complete exemption and the notification is merely a means to operationalize that scheme. The relevant portion of the decision is extracted herein in below: 7. From the provisions contained in Section 26 (1)(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 services provided by a service provider to a SEZ unit. Further, Sec. 51 of the SEZ Act also makes an over-riding provision that SEZ Act shall have effect even if there is anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any other law. It is accordingly held that Notification No.9/2009-ST and amended Notification No. 15/2009-ST have been only issued to operationalize the exemption/immunity available to SEZ unit under Sec. 26(1)(e) of the SEZ Act, 2005. 12. In the light of above discussion, we hereby hold that the notification has imposed a condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. This is because it is a well settled principle of interpretation that if there two interpretations possible of a rule, one of which would uphold its validity while the other which would invalidate it, the former should be preferred. The above decision has also been followed in catena of decisions one of which is New Holland Tractors India Pvt. Ltd. V. Commr. Of C. Ex. Reported as 2010 (253) ELT 249 (Tri-Del.) 13. Otherwise also, the provisions of SEZ Act have the overriding effect in terms of Section 51 of the Act as already mentioned above. By virtue of Section 51 of the SEZ Act, the provisions of the SEZ Act and the SEZ Rules are mandated to have overriding effect over the provisions contained in any other Act. Therefore, all the activities relating to SEZ shall be guided by the provisions contained in the SEZ Act and the SEZ Rules. It is seen that the SEZ Act provides for exemption from service tax payable under the Finance Act, 1994 on the taxable services provided to a Developer or Unit to carry on the authorized operations in the Special Economic Zone. Reliance in this regard is placed on the decision of the Hon'ble Tribunal in the case of Intas Pharma Ltd. vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bihar and Ors. MANU/SC/0486/1999; and Belsund Sugar Co. Ltd. v. State of Bihar and Ors. MANU/SC/0457/1999 9. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport. 15. The Hon ble Apex Court in another decision titled as Sanwarmal Kejriwal Vs. Vishwa Co-operative Housing Society reported as AIR 1990 SC 1563 has held that non-obstant clause has the overriding effect and it shall override any other contrary law to the effect. It is now clear that Section 26(1)(e) of SEZ ACT which read with Rule 31 of SEZ Rules, exempts the services rendered to SEZ units for their authorized operations from payment of service tax. SEZ Act and Rules there under have overriding effect in terms of Section 51 of SEZ Act. Thus any notifications including impugned Notification 9/2009-ST is issued in exercise of powers under Section 93 of the Act (subsequently amended vide Notification No. 12/2012-ST dated 01.07.2013 is not applicable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, such activity of renting out space for display of name would be exempt from payment of service tax under the SEZ Act. The issued of overriding effect of provisions of the SEZ Act, particularly over the inconsistent notification issued under the Act, is no longer res-integra and stands settled in favour of the assesses, inter alia. 17. Irrespective appellant claimed the tax exemption citing the said notification but the statutory scheme as discussed above shall still be relevant and exemption benefit cannot be denied. The findings are therefore held not sustainable. The adjudicating authority while denying has also held that the service of sale of space and time for advertisement is not the approved service, however, we could not find any basis on record to support those findings. No letter of approval has been found attached on the record of the impugned appeal memo. Otherwise also, the same has not been the ground taken in the show cause notice. 18. The findings based on these observations will definitely be beyond the scope of show cause notice and are not sustainable for the said reason. Also the present show cause notice raised demand holding that the activities of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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