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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 ..... n No.12/2013 could not have been denied just for the reason that at the time of receipt of services, there was no approval of Approval Committee cannot be upheld.' There are no reasons to interfere with the impugned order and the same is sustained - appeal filed by the Department being devoid of any merits, is dismissed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri A.K. Choudhary , Authorized Representative for the Appellant Shri Atul Gupta , Advocate Ms. Ushmeet Kaur Monga , Advocate for the Respondent ORDER P. K. CHOUDHARY : The present appeal has been filed by the Department assailing the Order-In-Appeal No.NOI-SVTAX-000-APPL-I-279-2016-17, dated-28/12/2016 passed by Commissioner (Appeals-I) Central Excise, Meerut. 2. The facts of the case in brief are that the Appellant is a Special Economic Zone SEZ unit and is engaged in providing Information Technology Services . The Appellant filled a refund application of Rs.8,78,79,806/- under Notification No.12/2013-ST dated 01.07.2013 for the period from April 2014 to June 2014 in respect of services used by them for the authorized operation in the SEZ. The Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the notification) on which the SEZ Unit or Developer wish to claim exemption from service tax Here, the emphasis is on getting an approval by the Approval Committee for the services required for authorized operations. Hon'ble CESTAT, Mumbai, in the case of Mahindra Engineering Service Ltd. Vs CCE, Pune-l, as reported in 2015(38) STR 841, has held as under: 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. I find that there is no dispute that before the filing of the refund claim by the appellant, the two impugned services were approved by the Deputy Development Commissioner, NSEZ, Noida and accordingly, the condition regarding getting the services approved, was fulfilled by the appellant. The appellant has further contended that beneficial Notifications have to be construed li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Ltd. V/s CCE, Pune-I [2015 (38) STR 841 (Tri.-Mumbai)]. In their grounds of appeal, Department has submitted that the order of the Tribunal that has been relied upon by the Commissioner (Appeals) in upholding the assessee s contention has been overruled by the decision of the Tribunal in Kolland Developers Pvt. Ltd. V/s Commissioner of C.Ex, Nagpur reported in 2016 (44) S.T.R. 65 (Tri.-Mumbai). Relevant paragraphs of the judgment are reproduced below:- The appellant, M/s. Kolland Developers Pvt. Ltd., are developer of SEZ. The appellant filed a refund claim in respect of services availed by them in terms of Notification No. 12/2013-S.T., dated 1-7-2013. The said notification provided exemption from the duty by way of refund to developer of SEZ. Clause 3(I) of the exemption reads as follows :- The SEZ Unit or the Developer shall get an approval by the Approval Committee of the list of the services as are required for the authorized operations (referred to as the specified services elsewhere in the notification) on which the SEZ Unit or Developer wish to claim exemption from service tax. The refund claim of the appellant was rejected by the lower authorities on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. 6. It is also the case of the Department that the learned Commissioner (Appeals) has erred in holding that the Notification nowhere lays down any condition that to claim refund, the services are required to be preferred on the date of receipt of the service by the SEZ unit. 7. Heard both the sides and perused the appeal records. 8. We find that the main ground for filing the appeal by the Department is that the learned Commissioner (Appeals) had relied upon the decision of the Tribunal in the case of Mahindra Engineering Services Ltd. (Supra). The order of the Tribunal in the case of Kolland Developers Pvt. Ltd. (Supra) was challenged before the Hon ble High Court of Bombay. We find that the Hon ble High Court of Bombay in the case of Kolland Developers Pvt. Ltd. V/s Commissioner of C.EX. CUS. (Appeals), Nagpur [2022 (57) G.S.T.L. 379 (Bom.)] have allowed the appeal of the assessee and set aside the order of the Tribunal and remanded the proceedings to the Tribunal to decide the appeal afresh on its own merits and in accordance with law. The Hon ble High Court while deciding the appeal observed as under:- Admit on the following substantial question of law : Whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices rendered after the grant of approval. The appellant preferred an appeal and the Commissioner (Appeals) dismissed the said appeal on 27-11-2015. The appellant then approached the Appellate Tribunal which by the order dated 10-6-2016 [2016 (44) S.T.R. 65 (Tri. - Mum.)] dismissed the same by holding that the appellant had not got the services in question duly approved by the Approval Committee and hence it was not entitled for the claim for refund under Notification No. 12/2013. This order is the subject matter of challenge in the present appeal. 3. Shri J. Sanghvi, Learned Counsel for the appellant inter alia submitted that the Tribunal was bound by its earlier order dated 10-10-2014 reported in 2015 (38) S.T.R. 841 in the case of Mahindra Engineering Service Ltd. v. Commissioner of C. Ex., Pune-I. According to him the facts of that decision indicated that the Tribunal had noted that Notification No. 9/2009 did not require the requisite services to be approved by the Approval Committee before providing the same. The appellant therein had filed a refund claim after the approval was granted and this fact was similar to the facts in the present case. The Tribunal however disrega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at said Notification did not require the approval from the Approval Committee to be obtained prior to providing the services in question. It also noted that the refund claimed therein had been filed after approval was granted by the Approval Committee. This was held to be sufficient compliance with the requirements of Notification No. 9/2009. The appellant before the Tribunal had also raised a contention that the conditions of Notification No. 9/2009 were similar to the conditions in Notification No. 12/2013. We find that the impugned order of the Tribunal does not consider the latter contention raised by the appellant for if that contention were to be accepted by the Tribunal, it either ought to have followed its earlier view in Mahindra Engineering Services Ltd. (supra) or if it was not inclined to do so, it ought to have referred the question to a Larger Bench as held in Mercedes Benz (India) Pvt. Ltd. (supra). Even otherwise we find that merely because a particular argument was not raised when the earlier proceedings were decided would not be a sufficient ground to disregard an earlier adjudication made on merits. It would be open for the Tribunal in subsequent proceedings to d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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