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TMI Blog2024 (9) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... be conveniently concluded that the transmission line installed even though outside the SEZ but the same is used for the authorized operation of the SEZ unit. Therefore on this ground Revenue seeking of refund will not be sustainable. As regard other issues that the appellant are operating their business in SEZ as well as in DTA, and the electricity generated in appellant s unit is used for both the operations. Therefore, the Revenue s contention is that the services on which refund under Notification No. 12/2013-ST claimed by appellant is not tenable - all the identical facts has been considered by this Tribunal consecutively in the two judgments and held that on this ground refund cannot be denied - reliance can be placed in ADANI POWER LTD. VERSUS CST AHMEDABAD AND VICE-VERSA [ 2016 (3) TMI 231 - CESTAT AHMEDABAD ]. There is no infirmity in the impugned order of the Commissioner (Appeals) - the impugned order is upheld - Appeal of Revenue dismissed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ), MR. C L MAHAR Shri Mihir G Rayka, Addl. Commissioner for the Appellant Shri Rahul Patel, Chartered Accountant for the Respondent ORDER RAMESH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansmission line for the transmission of power which is generated in the SEZ, the said transmission line is located outside SEZ area. It cannot be said that the service was exclusively used in the authorized operation of SEZ. On this we do not agree with the Revenue and in complete agreement with the Learned Commissioner (Appeals) for the reason that for the purpose of generation of electricity and transmission thereon it is very obvious that the transmission line can travel beyond SEZ also but the fact remains that transmission line is used for the transmission of the electricity generated in the SEZ. Therefore, it can be conveniently concluded that the transmission line installed even though outside the SEZ but the same is used for the authorized operation of the SEZ unit. Therefore on this ground Revenue seeking of refund will not be sustainable. 4.1 As regard other issues that the appellant are operating their business in SEZ as well as in DTA, and the electricity generated in appellant s unit is used for both the operations. Therefore, the Revenue s contention is that the services on which refund under Notification No. 12/2013-ST claimed by appellant is not tenable. In this reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA Unit. Thus, it is required to be ascertained sharing of business of specified services between SEZ Unit and DTA Unit. On perusal of the grounds of appeal filed by Revenue, we do not find any averment that there is a DTA unit of the assessee and therefore, Para 2(d) of notification cannot be invoked. 16. On perusal of the above correspondences, it is clear that the assessee applied for approval as Developer to set up the power sector at Village Tunda and Siracha, Taluka Mundra, District : Kutch, for the purpose of generation of power to be supplied to SEZs, EOUs in Gujarat and other SEZs, EOUs and others as permitted by the SEZ Rules. Rule 47 of the SEZ Rules as quoted above, permitted sales in DTA. Sub-rule (3) of Rule 47 of the SEZ Rules, 2006 provides surplus power generated in a SEZ may be transferred to DTA on payment of duty on consumable and raw material used for generation of power. On a query from the Bench, the learned Senior Advocate submits that they have not availed the Cenvat credit on goods used for transmission power and cables used for transmission outside SEZ. It is clear that the assessee had not availed Cenvat credit on the raw materials or consumables used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Economic Zone developer and units are implemented through various notifications and circulars issued by the concerned Ministries/Departments. In the present case, notifications issued by Central Government as stated above, exempting the Service Tax on taxable services received by unit or developer of SEZ, are in consequence of Section 26 of the SEZ Act, 2005. In terms of Section 2(c) of SEZ Act, 2005 Authorised operation means operations which may be authorized under Section 4(2) and Section 15(a) of SEZ Act. There is no dispute that the assessee was granted Letter of Approval and authorization to operate in SEZ by BOA. Notification, dated 10-5-2007 issued by the Ministry of Commerce Industry as quoted above, the assessee has been granted Letter of Approval for development, operation and maintenance of the sector specific SEZ for power sector for supply of power to SEZs, EOUs in Gujarat State and other SEZs and EOUs and others at Village Tunda and Siracha, Taluka Mundra, District Kutch, State of Gujarat. So, the assessee would be entitled to supply powers to SEZs, EOUs in Gujarat State and other SEZs and EOUs and others. The learned Authorised Representative submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for use of such services in relation to authorized operations. The jurisdictional Commissioner of Central Excise is also a member of this Approval Committee. Once the Approval Committee has given the nexus and the justification, it was totally unwarranted on the part of the adjudicating authority and the appellate authority to go into this question and come to their own findings in the matter. Therefore, rejection by the lower authorities of the refund claims of the service tax paid on various services on this ground is bad in law and is accordingly set aside. 20. Revenue also filed appeals against the impugned orders on the ground that the Commissioner (Appeals) has no power to remand the matter. The Hon ble High Court of Gujarat in the case of Commissioner of Service Tax v. Associated Hotels Ltd. - 2015 (37) S.T.R. 723 (Guj.), on the identical issue dismissed the appeal filed by the Revenue. In that case, the question raised before the Hon ble High Court as to whether the CESTAT is correct in holding that in Service Tax matters, the Commissioner (Appeals) has power to remand the matter back to the adjudicating authority for de novo adjudication. The Hon ble High Court held as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory are not approved. Rs. 10,437/- 22. The learned Senior Advocate submits that there is a subsequent development on these issues, which they have stated in their respective appeals, such as; rejection of refund on the documents of M/s. Karnavati Aviation Pvt. Ltd., considering the service under the category of passenger embarking in India for international journey . Subsequently, it was classified by the Revenue under the category of Supply of Tangible Goods . We find that the Commissioner (Appeals) already remanded some portion of the refund for verification. So, it is appropriate that the adjudicating authority should also examine the above issues on merit in de novo adjudication. 23. In view of the above discussion, the appeals filed by the assessee are disposed of by way of remand to the adjudicating authority. The appeals filed by the Revenue are rejected. Commissioner of Central Excise ST, Ahmedabad Vs. Adani Power Ltd- 2020 (3) TMI 810- CESTAT Ahmedabad 4 onwards 4. Heard both sides and perused the record. We find that there is no dispute to the facts that the issue involved is only interpretation of Notification No. 17/2011-ST and various provisions of SEZ Act. Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic Tariff Area (DTA) Unit in Para 2(d), of the notification, if read harmoniously, make it clear that the expression wholly consumed referred to the in the Explanation, would be applicable to sharing of business between authorized operation in SEZ Unit and DTA Unit. Thus, it is required to be ascertained sharing of business of specified services between SEZ Unit and DTA Unit. On perusal of the grounds of appeal filed by Revenue, we do not find any averment that there is a DTA unit of the assessee and therefore, Para 2(d) of notification cannot be invoked. 16. On perusal of the above correspondences, it is clear that the assessee applied for approval as Developer to set up the power sector at Village Tunda and Siracha, Taluka Mundra, District : Kutch, for the purpose of generation of power to be supplied to SEZs, EOUs in Gujarat and other SEZs, EOUs and others as permitted by the SEZ Rules. Rule 47 of the SEZ Rules as quoted above, permitted sales in DTA. Sub-rule (3) of Rule 47 of the SEZ Rules, 2006 provides surplus power generated in a SEZ may be transferred to DTA on payment of duty on consumable and raw material used for generation of power. On a query from the Bench, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chanism and a package of incentives to attract foreign and domestic investments for promoting export-led growth. While the policy relating to the Special Economic Zones is contained in the Foreign Trade Policy, incentives and other facilities offered to the Special Economic Zone developer and units are implemented through various notifications and circulars issued by the concerned Ministries/ Departments. In the present case, notifications issued by Central Government as stated above, exempting the Service Tax on taxable services received by unit or developer of SEZ, are in consequence of Section 26 of the SEZ Act, 2005. In terms of Section 2(c) of SEZ Act, 2005 Authorised operation means operations which may be authorized under Section 4(2) and Section 15(a) of SEZ Act. There is no dispute that the assessee was granted Letter of Approval and authorization to operate in SEZ by BOA. Notification, dated 10-5- 2007 issued by the Ministry of Commerce Industry as quoted above, the assessee has been granted Letter of Approval for development, operation and maintenance of the sector specific SEZ for power sector for supply of power to SEZs, EOUs in Gujarat State and other SEZs and EOUs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations undertaken by the appellant, this stand of the department is totally incorrect. The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorized operations. The jurisdictional Commissioner of Central Excise is also a member of this Approval Committee. Once the Approval Committee has given the nexus and the justification, it was totally unwarranted on the part of the adjudicating authority and the appellate authority to go into this question and come to their own findings in the matter. Therefore, rejection by the lower authorities of the refund claims of the service tax paid on various services on this ground is bad in law and is accordingly set aside. 20. Revenue also filed appeals against the impugned orders on the ground that the Commissioner (Appeals) has no power to remand the matter. The Hon ble High Court of Gujarat in the case of Commissioner of Service Tax v. Associated Hotels Ltd. - 2015 (37) S.T.R. 723 (Guj.), on the identical issue dismissed the appeal filed by the Revenue. In that case, the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a specified document under Rule 4A of Service Tax Rules. ₹ 6,386/- 6 Services wrongly classified by APL. ₹ 206/- 7 Certain service category on which refund has been claimed has not been approved and has been later approved via Notification 24-5-2012. ₹ 45,897/- 8 Services category are not approved. ₹ 10,437/- 22. The learned Senior Advocate submits that there is a subsequent development on these issues, which they have stated in their respective appeals, such as; rejection of refund on the documents of M/s. Karnavati Aviation Pvt. Ltd., considering the service under the category of passenger embarking in India for international journey . Subsequently, it was classified by the Revenue under the category of Supply of Tangible Goods . We find that the Commissioner (Appeals) already remanded some portion of the refund for verification. So, it is appropriate that the adjudicating authority should also examine the above issues on merit in de novo adjudication. 23. In view of the above discussion, the appeals filed by the assessee are disposed of by way of remand to the adjudicating authority. The appeals filed by the Revenue are rejected. 5. From the above ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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