2016 (11) TMI 1103 - AT - Central Excise

SEZ Units Win Refund Appeal on Service Tax Exemption for Consumed Services

The appeal was filed by Revenue against the rejection of a refund claim on Scientific or Technical Consultancy Service and Chartered Accountants Service. ... SEZ - Refund claim - Scientific or Technical Consultancy Service - Chartered Accountants Service - Held that: - the learned Commissioner (Appeals) has also observed that during the personal hearing, the assessee produced the list of services approved by the Development Commissioner and in the amended list of services, Scientific or Technical Consultancy Service and Chartered Accountants Service are added to the certified list of services in Annexure III and therefore, the learned Commissioner (Appeals) has allowed the benefit of refund of service tax paid by the assessee on Scientific or Technical Consultancy Service and Chartered Accountants Service . Similarly, the learned Commissioner (Appeals) has allowed the refund of Education Cess and Higher Education Cess on the basis of Board s Circular No. 134/3/2011-ST dated 08.4.2011. After considering the submission of the learned A.R. and the facts on record, I do not find any infirmity in the impugned order passed by the Commissioner (Appeals) - refund allowed - appeal dismissed - decided against Revenue. Issues:- Refund claim on Scientific or Technical Consultancy Service and Chartered Accountants Service- Refund claim on Education Cess and Higher Secondary Education Cess- Interpretation of approved list of specified services in Annexure II & III- Benefit of refund for SEZ units under SEZ Act 2005 and SEZ Rules 2006Refund claim on Scientific or Technical Consultancy Service and Chartered Accountants Service:The appeal was filed by Revenue against the Order-in-Appeal allowing the refund claim rejected by the original authority on Scientific or Technical Consultancy Service and Chartered Accountants Service. The Assistant Commissioner had rejected the refund on these services as they were not found in the approved list of specific services in Annexure II & III. However, the Commissioner (Appeals) allowed the refund based on the argument that SEZ units should not be penalized for paying service tax on services availed within the SEZ, even if not listed in Annexure II & III. The Commissioner observed that denying the refund in such cases would go against the law and spirit of the SEZ Act, ultimately upholding the appeal of the assessee.Refund claim on Education Cess and Higher Secondary Education Cess:In addition to the refund claim on specific services, the appeal also involved Education Cess and Higher Education Cess. The Assistant Commissioner had rejected the refund claim for these cess amounts but sanctioned the refund of service tax paid on other services mentioned in Annexure II or III. However, the Commissioner (Appeals) allowed the refund of Education Cess and Higher Education Cess based on Board's Circular No. 134/3/2011-ST dated 08.4.2011. The Commissioner's decision was supported by the fact that the SEZ units should not have to pay service tax and then claim a refund if the services were wholly consumed within the SEZ.Interpretation of approved list of specified services in Annexure II & III:The crux of the issue revolved around the interpretation of the approved list of specified services in Annexure II & III. The Revenue argued that the refund claim on Scientific and Technical Consultancy Service and Chartered Accountants Service should not have been allowed as these services were not listed in the relevant annexures at the time. However, the Commissioner (Appeals) emphasized that the intention of the government was to exempt SEZ units from paying service tax or provide them with a refund. The Commissioner's decision was based on the principle that SEZ units should not be penalized for paying service tax on services consumed within the SEZ, even if those services were not explicitly listed in the annexures.Benefit of refund for SEZ units under SEZ Act 2005 and SEZ Rules 2006:The case also highlighted the benefit of refund for SEZ units under the SEZ Act 2005 and SEZ Rules 2006. The appellant, being a holder of Service Tax Registration under specific categories, had obtained approval for setting up an SEZ and was entitled to duty benefits under the said Act and Rules. The Commissioner (Appeals) acknowledged the importance of ensuring that SEZ units are not unfairly burdened with service tax payments for services consumed within the SEZ, aligning with the government's intention to support such units by either exempting them from paying service tax or facilitating refunds for taxes paid on eligible services within the SEZ.