9911796707
TMI Blog2025 (1) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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.' Similarly, in case of ANJANI EXCAVATION OPERATION VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX CGST CENTRAL EXCISE VADODARA II [ 2024 (11) TMI 405 - CESTAT AHMEDABAD ], this Bench has held the benefit of exemption available to the service provider by resorting to the provisions of Special Economic Zones Act, 2005. The benefit of refund of service tax paid by the appellant cannot be snatched away on grounds of procedural and hyper technical infarctions pointed out by the revenue in the impugned orders. It is no matter of dispute that the appellant including its erstwhile entity were duly approved and authorised as co-developer of Special Economic Zone in Mundra, Gujarat - there are no merit in the arguments and averments made by the appellate authority in impugned order to deny the benefits granted by the provisions of the Special Economic Zones Act. Once the tax has been charged, collected and paid by the respective service provider, the recipient cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T-VI/Ref-32/APML/DC/DRS/2020-21 15,12,709 12 ST/10491/2022 AHM-EXCUS-001-APP-054/2021-22 CGST-VI/Ref-35/APML/DC/DRS/2020-21 42,500 13 ST/10492/2022 AHM-EXCUS-001-APP-055/2021-22 CGST-VI/Ref-34/APML/DC/DRS/2020-21 18,52,289 14 ST/10493/2022 AHM-EXCUS-001-APP-056/2021-22 CGST-VI/Ref-36/APML/DC/DRS/2020-21 4,89,250 15 ST/10494/2022 AHM-EXCUS-001-APP-058/2021-22 CGST-VI/Ref-30/APML/DC/DRS/2020-21 8,38,047 16 ST/10495/2022 AHM-EXCUS-001-APP-059/2021-22 CGST-VI/Ref-43/APML/DC/DRS/2020-21 17,11,120 17 ST/10496/2022 AHM-EXCUS-001-APP-060/2021-22 CGST-VI/Ref-31/APML/DC/DRS/2020-21 5,62,444 18 ST/10497/2022 AHM-EXCUS-001-APP-061/2021-22 CGST-VI/Ref-29/APML/DC/DRS/2020-21 10,42,216 Total 136,00,921 1.1 Since all the appeals referred to hereinabove involved common issue and causes, we dispose them by way of this common order. Common facts involved in all these appeals are that the Appellant acquired Mundra Power Generating Undertaking along with all its assets and liabilities in a scheme of arrangement with Adani Power Limited approved by National Company Law Tribunal vide their common order dated 03.11.2017. Their request for transfer of the Letter of Approval including Authorised Operations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the appellant has taken in the appeal before us relates to their entitlement for exemption as well as refund in unconditional and non-qualifying manner in terms of provisions of Special Economic Zones Act, 2005. In case of Inox India P Ltd v. CCE Kutch (Gandhidham) 2024 (3) TMI 922, this Bench has considered the issue and decided as follow : 4.1. We also find force in the argument of the learned Advocate that the substantive benefit of the service tax exemption provided under Section 26 of the Special Economic Zone Act and Rule 31 of the Special Economic Zone Rules cannot be denied only on procedure requirement under Notification No. 9/2009 dated 03.03.2009 as amended by Notification No. 15/2009 dated 20.05.2009. Before proceeding further in this regard it will be relevant to have glance at the provision of Section 26 of Special Economic Zone Act. 26. (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur shall be entitled to the following exemptions, drawbacks and concessions, namely :- ( a) exemption from any duty of customs, under the Customs Act, 1962 or the Custom Tariff Act, 1975 or any other law for the time being in force, on goods import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r all the procedure to be followed is incorrect. The main criteria for granting the exemption is that the service should be provided in the SEZ unit which is not under the dispute in the present case. Once this fact is established, then not only service is exempt under Notification No. 09/2009- ST dated 03.03.2009 but also not taxable in terms of the Section 51 read with Section 26 of the SEZ Act. This issue has been considered time and again in the following judgments:- a) In the case of Intas Pharma Ltd (Supra) this Tribunal has given the following findings:- 7. We notice that the Special Economic Zones Act, 2005 (Central Act 28 of 2005) was enacted providing for SEZ within the territory of India and for providing inter alia immunities/exemptions from taxes/duties/cesses. Section 7 of the 2005 Act enjoins that any goods or services exported outside, or imported into, or procured from the domestic tariff area, by a unit in SEZ or a developer shall, subject to such terms and conditions and limitations, as may be prescribed be exempted from payment of taxes/duties/cesses under all enactments specified in the First Schedule. The First Schedule does not enumerate the Act (Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2009 disentitle immunity to Service Tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalised. Notification Nos. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These Notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph c of Notification No. 15/2009 cannot be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a SEZ were always available and Notification No. 9/2009-S.T. and No. 15/2009-S.T. have only operationalized the exemption provided. Para 11 of the above judgment is reproduced below : 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 overarching provisions of Section 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Notification 9/2009 nor 15/2009 disentitle immunity to Service Tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalized. Notification Nos. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so Interpreted as to be eclipsed the procedural prescriptions of Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 4/2004-S.T. is not applicable. It is undisputed that during the period 1-4-2005 to 31-3-2009 the respondent had rendered various services to the unit situated in SEZ and being developed by the SEZ developer. It is also undisputed that appellant was a sub-contractor. On this factual matrix, we have to now consider the Notification No. 4/2004-S.T. which reads as under : Service tax exemption to services provided to a Developer or units of Special Economic Zone Notification No. 17/2002-S.T. superseded In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) and in supersession of the notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue), No. 17/2002-Service Tax, dated 21-11-2002, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated 21-11-2002, vide, G.S.R 777(E), dated 21-11-2002, except as respects things done or omitted to be done before such supersession, the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts taxable service of any description as defined in clause (90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tri.-Bang.) and this Tribunal came to a conclusion that where the services are rendered to SEZ or a unit in SEZ, as long as it is rendered for consumption in a Special Economic Zone, the services are exempt. We also note that the provisions of Section 26 of the Special Economic Zone overrides provisions of other law and exempts any services or taxes if the same are consumed in Special Economic Zone. 7. In view of the foregoing and the authoritative judicial pronouncement, we find no merits in the appeal filed by the Revenue and the same stands rejected and hold impugned order is correct and legal and does not require any interference. cross-objection is also disposed of. From the above judgments, it can be seen that it is settled that when subcontractor provided the service on behalf of the main contractor in the SEZ, the same is exempted from payment of service tax. Considering the judgments and facts of the present case, the appellant is not liable to pay service tax. 4.2 In view of above position of law consistently followed by this Bench, we find that the benefit of refund of service tax paid by the appellant cannot be snatched away on grounds of procedural and hyper technical ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
