TaxTMI 
TaxTMI 
2010 (6) TMI 543
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....Division -III, Mumbai, (hereinafter referred to as 'the Respondent'). Brief Facts of the Case 2. The Appellant has filed this appeal on 22-4-2009, against the impugned order dated 12-12-2008, rejecting their refund claim for the amount of Rs. 12,32,233/-. This is a third party refund claim filed by the Appellant, 9-5-07, being service tax paid by the Appellant, in May 2006, to M/s. National Securities Depository Ltd., (NSDL) for the taxable services of "Banking and Other Financial Services" offered by NSDL to the Appellant. M/s. NSDL in turn had paid the tax into the exchequer. 2(a). The facts, in brief, are that M/s. Reliance Petroleum Ltd., the Appellant, had set up a unit in the Special Economic Zone (SEZ) at Jamnagar....
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....s. NSDL were utilized for raising funds for the projects from the stock market through an IPO; (ii) that Notification No. 4/2004 dated 31-3-04 has exempted all taxable services provided to a developer of SEZ or in a unit in the SEZ for consumption of the services within the SEZ; (iii) that the above notification puts a 'rider' that the services must be 'consumed within the SEZ' and as per this Notification the services must be 'used' within the SEZ, which means the consumption of the service must be done within the boundaries of the SEZ which is a duty free enclave; (iv) that by applying the test of 'principle of equivalence' as laid down in the Hon'ble Supreme Court's decision in the case ....
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....ere billed for by NSDL; (ii) that NSDL had charged service tax and the Appellant had paid the same; (iii) that as the services availed by the Appellant from NSDL were for raising finance for carrying on its authorized operations in the SEZ, they are entitled for exemption in terms of Section 26(1)(e) of the SEZ Act, 2005, from the levy of Service Tax, and hence they filed the refund claim for reimbursement of Service Tax; (iv) that the appellant has provided a certificate from their Chartered Accountants, certifying that the amount of service tax reimbursed by them to NSDL, was separately shown in the books of accounts as a receivable from the Government; (v) that....
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....le in terms of Notification No. 4/2004-Service Tax dated 31-3-04; (x) that the mere fact that the bills of M/s. NSDL bore the address of the registered office of the company could make no difference to this situation and that the entire test of equivalence applied by the adjudicating authority does not justify the assumption made by him that the consumption of services is only at the address mentioned in the invoice even if the services have been rendered in relation to the SEZ unit; (xi) that the impugned order be quashed and set-aside and the amount in dispute be refunded along with interest; 5. A Personal Hearing was granted to them on 12-2-10, and Shri Vinayak Thakur, Vice-Presiden....
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....ment Commissioner of Kandla Special Economic Zone had accorded his approval on 4-5-2006. The Appellant had availed the "Banking and Financial Services" provided by M/s. NSDL, who charged Service Tax for the taxable services rendered to the appellant and therefore the appellant had paid the Service Tax of Rs. 12,32,233/- to M/s. NSDL and since the Appellant contends that they had availed these services in respect of their SEZ unit, they are not liable to pay Service Tax and hence this third party refund claim. 8. (i) Section 26(1)(e) of the Special Economic Zones Act, 2005, states that every developer and the entrepreneur shall be entitled to exemption from service tax under Chapter-V of the Finance Act, 1994 on taxable se....
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....o. 4/2004-S.T., dated 31-3-04. (ii) Raising finance outside the SEZ, even if for the SEZ project, cannot be called authorized operations in the SEZ or consumption of the services within such Special Economic Zone, as contended by the Appellant. Further Sec. 51(l) of the SEZ Act, 2005, cited by the Appellant vide para 4(ix) above, states that The provisions of this Act shall have effect notwithstanding anything 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. However as stated in para 8(iii) above, the exemption granted under the Notification No. 4/2004-S.T. is not inconsistent with the provisions of Sec. 26(1)(e) of the SEZ Act,....