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TMI Blog2024 (12) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant s own case, as well as various judgments cited by the appellant, the issue that whether the sub-contractor though provided the service in SEZ for and on behalf of the main contactor is liable to service tax, has been settled in the appellant s favour. Accordingly, the issue is no longer res-integra. The impugned order is not sustainable, hence, the impugned order is set aside - Appeal is allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Shri Saurabh Dixit, Advocate for the Appellant Shri Mihir G Rayka, Additional Commissioner (AR) for the Respondent ORDER RAMESH NAIR The issue involved in the present case is that whether the appellant being sub-contractor provided service in SEZ on behalf of the main contractor, is eligible for exemption from service tax vide Notification No. 09/2009-ST dated 03.03.2009 as amended by Notification No. 15/2009-ST dated 20.05.2009 as well as subsequent Notifications No, 17/2001-ST dated 01.03.2011, 40/2012-ST dated. 20.06.2012 and Notification No. 12/2013 dated 01.07.2013. 2. Shri Saurabh Dixit, Learned Counsel appearing on behalf of the appellant at the outset submits that this iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y statutory provisions of the Finance Act, 1994 (as amended) there is any such provisions of exemption from levy of Service Tax on the taxable services when provided by a sub-contractor to the Contractor of a SEZ Unit. Further, levy of service tax is by virtue of the Finance Act, 1994 and no levy can be imposed by way of instructions/circular by the Board. In this regard, the recent decision of Hon. Tribunal in the case of M/s. Sew Construction Ltd. Vs. CCE, Raipur- 2011 (22) STR 666 (Tri.-Del) is most relevant. It was held by the CESTAT that 5. We do not find any provision in the Finance Act, 1994 to grant immunity to the sub contractor from levy of service tax when undisputedly taxable services were provided by them. No evidence was before us to notice whether the service provided by the sub- contractor to the contractor was ever been taxed. We noticed that para 9 of the Larger Bench decision in the case of M/s. Vijay Sharma Co. cited by the learned AR clearly speaks that a sub-contractor shall not be immune from service tax under Finance Act, 1994. The said para 9 is reproduced below for appreciation. In view of the foregoing discussion, it is clear that even when service is pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are approved by the concerned authority in relation to the authorised operations in SEZ therefore, in our considered view, even the appellant is sub-contractor but the condition of providing service to authorised operation has been satisfied. Therefore, exemption cannot be denied to the appellant. This issue has been considered by this Tribunal in the following decisions; (a) Sudhir Chand Jain vs. CCE 2018 (8) GSTL 302 ( Tri. All ) (b) CST vs. Fedco Paints and Contracts 2017(3) GSTL 364 ( Tri.-Mumbai ) From the above judgments and the discussion and findings given hereinabove, there is no doubt in our mind that service provided by the appellant in the capacity of sub-contractor but in relation to the authorised operations in SEZ are clearly eligible for exemption Notification No. 9/2009-ST dated 03.03.2009 as amended. Accordingly, the impugned order is set-aside, appeal is allowed. A similar view has also been taken by this Tribunal in the case of Rishabh Construction Company 2023 (10) TMI 596-CESTAT Ahmd, the same is reproduced below:- 4. We have carefully considered the submission made by both sides and perused the records. We find that the Revenue has denied the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (90) of sub-section (1) of section 65 of the said Act provided to a developer of Special Economic Zone or a unit (including a unit under construction) of Special Economic Zone by any service provider for consumption of the services within such Special Economic Zone, from the whole of service tax leviable thereon under section 66 of the said Act, subject to the following conditions, namely : - (i) the developer has been approved by the Board of Approvals to develop, operate and maintain the Special Economic Zone; (ii) the unit of the Special Economic Zone has been approved by the Development Commissioner or Board of Approvals, as the case may be, to establish the unit in the Special Economic Zone; (iii) the developer or unit of a Special Economic Zone shall maintain proper account of receipt and utilisation of the said taxable services. Explanation. - For the purposes of this notification, - (1) Board of Approvals means the combined Board of Approvals for export oriented unit and Special Economic Zone units, as notified in the Official Gazette, from time to time by the Government of India in the Ministry of Commerce and Industry; (2) developer means a person engaged in develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. State of Bihar. Further, I find that the approval should be either by the Deputy Commissioner and/or Board of Approvals as the case case may be. Here, admittedly the work order has been issued by Deputy Commissioner, SEZ. Hence it amounts to providing and consuming service to SEZ and/or allotted through NBCC, as the operating agency to the appellant with regard to other demand of Service Tax which already stands paid along with interest before SCN and not being contested by the appellant as regard taxability. Thus, there is ipso facto approval of the Deputy Commissioner of the SEZ. Thus, I hold that no further approval of the Approval Committee is required under the facts and circumstances. Accordingly, the appeal is allowed and the demand of Rs. 17,51,124/- is set aside. I also find that there is no suppression of facts or contumacious conduct on the part of the appellant. Accordingly, the penalty under Section 78 Section 77 of the Finance Act, 1994 is also set aside. The appellant will be entitled to consequential benefits, if any, in accordance with law. 4.1 In view of the above judgments, it is settled that the service of sub- contractor provided in SEZ shall be eligible f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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