2024 (11) TMI 405 - AT - Service Tax

Subcontractor providing services in SEZ exempt from service tax under Notification 09/2009-ST, demand set aside

CESTAT Ahmedabad allowed the appeal of a subcontractor who provided services in SEZ. The tribunal held that subcontractors cannot be expected to obtain ... Service tax demand on appellant being a subcontractor of main contractor provided services in the SEZ - service tax demand was made on the ground that appellant is not entitled for exemption Notification No. 09/2009- ST dated 03.03.2009 as amended by Notification No. 15/2019-ST dated 20.05.2019 on the ground that the appellant have failed to provide declaration in form A-1 and A-2. Further, Rule 10 of SEZ Rules, 2006 does not extent the benefit to the subcontractor for the SEZ unit HELD 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 of the main contractor with SEZ unit. Therefore, expecting form the sub contractor 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 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. Thus, the appellant is not liable to pay service tax. Issues Involved:1. Whether the appellant, as a subcontractor providing services in a Special Economic Zone (SEZ), is liable to service tax.2. Applicability of exemption Notification No. 09/2009-ST as amended by Notification No. 15/2019-ST.3. Procedural requirements for exemption, specifically the need for declarations in forms A-1 and A-2.4. The impact of SEZ Act and Rules on service tax liability for subcontractors.Issue-wise Detailed Analysis:1. Liability of Subcontractor to Service Tax in SEZ:The primary issue is whether a subcontractor providing services within an SEZ is liable to pay service tax. The appellant argued that the services were provided within the SEZ, which is undisputed, and should therefore be exempt from service tax. The Tribunal noted that the SEZ Act provides exemptions for services provided to a Developer or SEZ unit for authorized operations. The exemption is typically extended to services directly provided to SEZ units or developers, but the appellant contended that as a subcontractor, the services were ultimately received by the SEZ unit, thus qualifying for exemption.2. Applicability of Exemption Notifications:The appellant's claim for exemption under Notification No. 09/2009-ST, as amended by Notification No. 15/2019-ST, was challenged by the Revenue on the grounds that the appellant did not provide the necessary declarations (forms A-1 and A-2) and lacked direct approval from the SEZ authority. The Tribunal observed that the exemption is available for services provided to SEZ units or developers, and the procedural requirements should not obstruct the substantive benefit of the exemption. The Tribunal referenced several judgments to support the view that subcontractors can avail of the exemption if the services are ultimately consumed within the SEZ.3. Procedural Requirements for Exemption:The Revenue's argument emphasized the lack of procedural compliance, specifically the absence of forms A-1 and A-2, which are typically required to claim exemption. The Tribunal, however, found that these procedural lapses should not negate the exemption if the substantive conditions are met, i.e., the services are provided within the SEZ. The Tribunal highlighted that the main contractor, who directly dealt with the SEZ unit, had fulfilled these procedural requirements, and it was unreasonable to expect the subcontractor to duplicate these efforts.4. Impact of SEZ Act and Rules:The Tribunal noted the overriding effect of the SEZ Act, which provides exemptions from taxes, including service tax, for services used in SEZ operations. Section 26 of the SEZ Act grants exemptions for services provided to SEZ units or developers, and Section 51 gives the Act precedence over other laws. The Tribunal cited previous rulings that affirmed the SEZ Act's provisions supersede conflicting requirements in other legislation, thereby supporting the appellant's claim for exemption.Conclusion:The Tribunal concluded that the appellant, as a subcontractor providing services within the SEZ, is not liable to pay service tax. The procedural requirements cited by the Revenue should not impede the substantive exemption provided under the SEZ Act and relevant notifications. The Tribunal set aside the impugned order and allowed the appeal, emphasizing that the service tax exemption applies to services consumed within the SEZ, regardless of whether they are provided directly by a main contractor or through a subcontractor.