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TMI Blog2025 (1) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... f the refund application, observed that invoices involving service tax refund claim of Rs.4,70,540/- did not appear to be pertaining to services which could qualify as input service for the Assessee and that refund claim of Rs.12,37,986/- did not appear to be admissible as the impugned services were not duly approved by the Deputy Development Commissioner, NSEZ, Noida. Accordingly, Show Cause Notice dated 07.10.2014 was issued proposing rejection of refund claim of Rs.17,08,526/-The Adjudicating Authority vide the impugned Order, sanctioned the refund claim of Rs.2,87,550/- and rejected the refund claim of Rs.12,37,986/- by holding that the impugned services were approved by the Deputy Development Commissioner only on 03.09.2014 and, therefore, the refund claim pertaining to the period prior to 03.09.2014 on the impugned services, was not admissible to the assessee. Being aggrieved, the Assessee filed appeal before the First Appellate Authority and the learned Commissioner (Appeals) vide the impugned Order-In-Appeal allowed the appeal of the Assessee by observing thus : - "I find that the only reason given by the adjudicating authority, to reject the refund claim pertaining to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court of India, in the case of Commissioner of Customs (Prev), Mumbai v. M. Ambalal & Co., as reported in 2010 (260) ELT 487, has held as under: "10. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgements emphasize that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal Statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of specified services was not approved at the time when the said services were availed. 2. Learned counsel for the appellant argued that there is no condition that the list of services is to be approved before availing the notification. He relied on the decision of the Tribunal in the case of Mahindra Engineering Services Ltd. - 2015 (38) S.T.R. 841 (Tri.-Mum.), wherein the Tribunal has observed as follows :- "6. I have carefully considered the submissions made by both sides. It is noted that Notification No. 9/2009 does not state that the list of services required in relation to authorized operations in the SEZ should be got approved from the approval committee before providing the services. The appellants have pointed out that they had filed the refund claim after the list was approved. Thus, the claim is in consonance with the requirement of notification." He argued that the conditions of Notification No. 9/2009-S.T. were similar to the condition of Notification No. 12/2013-S.T., dated 1-7-2013. 3. Learned AR argued that the refund is given for grant of exemption. He argued that when exemption is to be claimed, the conditions of Notification have to be fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of law : "Whether the Customs, Central Excise and Service Tax Appellate Tribunal ought to have followed its own decision in Mahindra Engineering Services Ltd. v. Commissioner of Central Excise, Pune-I - 2015 (38) S.T.R. 841 (Tri. - Mumbai) especially when the same was after considering the effect of Notification No. 9/2009 which now has been superceded by Notification No. 12/2013 which is applicable in the facts of the present case?" Heard Learned Counsel for the parties. 2. The facts giving rise to this appeal under Section 35G of the Central Excise Act, 1944 (for short, the said Act) are that the appellant is a Company incorporated under the Companies Act, 1956. It is authorised to develop Information Technology and related services at the Special Economic Zone at MIHAN, Nagpur under the Special Economic Zone Act, 2005. For the purposes of development of the aforesaid services the appellant appointed M/s. Shapoorji Pallonji & Co. Pvt. Ltd. as its contractor and sought various services from it. These services were classified under the category of Business Auxiliary Services. After the services provided from the period April, 2009 to September, 2010 the said service p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case. The Tribunal however disregarded that decision by observing that the Revenue in that case had not argued that the conditions of Notification No. 9/2009 were required to be fulfilled at the time of availing exemption. He submitted that in the light of its own decision in Mahindra Engineering Services Ltd. (supra) the Learned Member either ought to have followed the same or if he was not inclined to do so, the question should have been referred to a Larger Bench as held by the Division Bench of this Court in Mercedes Benz India Pvt. Ltd. v. Union of India - 2010 (252) E.L.T. 168 (Bom.). It was not permissible for the Tribunal to have disregarded its own order passed earlier. He then submitted that even on a plain reading of Notification No. 12/2013 there was no requirement of obtaining prior approval of the Approval Committee before availing the services as per Condition 3(1). The respondent No. 1 therefore erred in not granting the benefit of Notification No. 12/2013 as sought by the appellant. 4. Shri S.N. Bhattad, Learned Counsel for the respondent supported the impugned order. According to him the Tribunal was justified in holding that the conditions requisite for cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in subsequent proceedings to doubt the correctness of the view earlier taken and refer the question to a Larger Bench but it would not be permissible to disregard the earlier view on the ground that a particular contention was not raised when the earlier order was passed. 6. Since we prima facie find that the appellant was justified in relying upon the earlier decision of the Tribunal in Mahindra Engineering Services Ltd. (supra) and that the Tribunal was not justified in disregarding its earlier order, we find that re-consideration of the proceedings by the Tribunal is warranted in this backdrop. Accordingly the substantial question of law as framed is answered by holding that the Customs, Central Excise and Service Tax Appellate Tribunal ought to have considered the effect of its earlier decision in Mahindra Engineering Services Ltd. (supra). If it was of the opinion that said view required re-consideration, the option of referring that question to a Larger Bench ought to have been exercised. In view of the aforesaid answer the following order is passed : (i) The order dated 10-6-2016 passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai in Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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