9911796707
TMI Blog2025 (1) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. Number of the order appealed against - OIA Order-in-Original No. Refund Involved 1 ST/10480/2022 AHM-EXCUS-001-APP-043/2021-22 CGST-VI/Ref-33/APML/DC/DRS/2020-21 6,63,386 2 ST/10481/2022 AHM-EXCUS-001-APP-044/2021-22 CGST-VI/Ref-26/APML/DC/DRS/2020-21 14,50,966 3 ST/10482/2022 AHM-EXCUS-001-APP-045/2021-22 CGST-VI/Ref-28/APML/DC/DRS/2020-21 9,46,458 4 ST/10483/2022 AHM-EXCUS-001-APP-046/2021-22 CGST-VI/Ref-38/APML/DC/DRS/2020-21 4,58,483 5 ST/10484/2022 AHM-EXCUS-001-APP-047/2021-22 CGST-VI/Ref-41/APML/DC/DRS/2020-21 1,11,288 6 ST/10485/2022 AHM-EXCUS-001-APP-048/2021-22 CGST-VI/Ref-40/APML/DC/DRS/2020-21 2,28,278 7 ST/10489/2022 AHM-EXCUS-001-APP-049/2021-22 CGST-VI/Ref-42/APML/DC/DRS/2020-21 2,37,001 8 ST/10487/2022 AHM-EXCUS-001-APP-050/2021-22 CGST-VI/Ref-39/APML/DC/DRS/2020-21 3,66,152 9 ST/10488/2022 AHM-EXCUS-001-APP-051/2021-22 CGST-VI/Ref-27/APML/DC/DRS/2020-21 9,30,318 10 ST/10486/2022 AHM-EXCUS-001-APP-052/2021-22 CGST-VI/Ref-37/APML/DC/DRS/2020-21 1,58,016 11 ST/10490/2022 AHM-EXCUS-001-APP-053/2021-22 CGST-VI/Ref-32/APML/DC/DRS/2020-21 15,12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved, the appellant preferred appeals before this Bench which were disposed of by way of remand through orders No. A/10147-10187/2016 dated 02.02.2016. Having rejected the refunds, to the extent they relate to present issues, the appellant again challenged the orders before the first appellate authority by way of various appeals referred to in table above. Having denied the eligibility of refund by the first appellate authority, the appellant is before this Tribunal in various appeals referred to in table above. 2. Shri Jigar Shah, learned counsel with Shri Amber Kumrawat, Advocate appearing on behalf of the appellant vehemently pressed the issues of refund and other grounds taken in the appeal memorandum and also presented the case laws in support. 3. Shri NeilPrakash G Makwana, Learned Superintendent(AR) on behalf of revenue reiterated the impugned orders-in-appeal. 4 We have heard both the sides, considered the submissions and perused the records. We find that the issues involved in all the appeals fall in a narrow compass as to whether the Appellant being the developer / co-developer in Special Economic Zone entitled to refund of service tax paid by them in relation to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Zone Act. Once the legislature by way of enactment has provided certain exemption we feel that any notification issued under any other enactment will not take away the right of the exemption from payment of the Service Tax to the appellant for the activity while falls under category of the authorized operations within a Special Economic Zone." 4.1 Similarly, in case of Anjani Excavation Operation v. CCE - 2024 (11) TMI 405, this Bench has held the benefit of exemption available to the service provider by resorting to the provisions of Special Economic Zones Act, 2005. Relevant paras of the decision are as under : "From the above observation, it can be seen that all the issues have been dealt with and a prima facie view was given that the procedural lapse should not come in the way of granting the exemption under Notification No. 09/2009- ST dated 03.03.2009 as amended. It was also observed that the parent Act i.e. SEZ Act itself grant exemption but all these observation were brushed aside by the adjudicating authority. We find that the appellant being a sub-contractor cannot be expected to obtain a A1, A2, the same has been obtained by main contractor, since, direct dealing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recipient of the taxable service of Architect, Interior Decorator and Consulting Engineer, i.e. in respect of those services provided to the appellant by M/s. Venkataramanan Associates. Notification No. 9/2009-S.T., dated 3-3-2009 as earlier adverted to, enables claim of exemption by developers or units in SEZ by way of refund of Service Tax paid for services used in relation to authorized operations in SEZ, insofar as the claim for refund is filed within six months or within such extended period as the Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be, shall permit. 10. Insofar as Notification No. 15/2009-S.T. is concerned, Para 'c' of the earlier Notification No. 9/2009-S.T. was substituted. The current requirement is that the exemption claimed by the developer or units of SEZ shall be provided by way of refund of Service Tax paid on the specified services used in relation to the authorised operations in the SEZ, except for services consumed wholly within the SEZ. 11. On true and fair construction of Notifications 9/2009 and 15/2009 issued under Section 93(1) of the Act, considered in the light of the overarching provisions of Sections 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Z. Under Notification No. 15/2009-S.T., dated 20-5-2009, exemption from payment of service to the service providers was made available by a suitable amendment in proviso (c) of para 1 of Notification No. 9/2009-S.T., dated 3-3-2009 for the services provided inside SEZ. Before this amendment also, exemption was available to the service recipient by way of refund by the service recipient subject to certain conditions. In this regard, appellant has relied upon the judgment of Tata Consultancy Services Ltd. v. CCE & ST (LTU), Mumbai (supra), under which it was held that even if a service provider was not required to pay duty as per the amended provisions of Notification No. 9/2009-S.T. but paid for some reasons then the service provider was entitled to refund under Section 11B of the Central Excise Act, 1944. On the same analogy when services supplied to SEZ are considered as services provided inside a SEZ unit, there is no Service Tax liability on such deemed export as held by CESTAT in the case of Sujana Metal Products Ltd. v. CCE, Hyderabad [2011 (273) E.L.T. 112 (T.-Bang.)]. 6. The appellant has further relied upon the judgment of Intas Pharma Ltd. v. CST, Ahmedabad (supra) hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 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-S.T. and amended Notification No. 15/2009-S.T. have been only issued to operationalize the exemption/immunity available to SEZ unit under Sec. 26(1)(e) of the SEZ Act, 2005. 8. In view of the above findings, the appeal filed by the appellant is allowed." c) In the case of Fedco Paints and Contracts (Supra) this Tribunal Mumbai Bench has given the following view:- "5. After hearing both the sides, we find that the main ground of the appeal of the Revenue is that the respondent had nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 development or operation or maintenance of Special Economic Zone, and also includes any person authorised for such purpose by any such developer; (3) "Special Economic Zone" means a zone specified as Special Economic Zone by the Central Government in the notification issued under clause (iii) of Explanation 2 to the proviso to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944)." 6. It can be seen from the above reproduced notification that the said notification exempts any taxable service provided by any service provider for consumption of the service within a Special Economic Zone, subject to following/adhering to the conditions. It is also undisputed that all the conditions mentioned in the notifications are satisfied by the SEZ developer i.e. M/s. Reliance Industries Ltd. On the face of such factual matrix, we find that the adjudicating authority was correct in coming to the conclusion that the proceedings initiated by show cause notice issued needs to be dropped. We also find as regards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to services provided by Karnavati Aviation Private Limited by way of transportation of passengers in domestic journeys, that the appellant has been denied the refund only on a ground that the service tax was levied in respect of such services only after 01.07.2010 whereas services were provided and subjected to taxation prior thereto. However, an important aspect which has been completely overlooked by the lower authorities that regardless of the taxability of those services, tax was duly charged and collected by the service provider from the appellant. There is no challenge in the impugned order that the service tax was not charged and discharged by the service provider. Once the tax has been charged, collected and paid by the respective service provider, the recipient cannot be burdened to show and explain the reasons for levy carried out by the service provider. Burden of recipient is limited to prove payment of such amount as service tax to the service provider and which has not been challenged in the present appeals. Thus, we do not find merit in the justifications given in the impugned orders to deny the refund claim and we find that the appellant succeeds in explaining thei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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