2013 (7) TMI 703

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....Assistant Commissioner, Service Tax, Division-I, Ahmedabad. The adjudicating authority accepted the claim of the appellant for refund of Rs. 1,30,410/- only to the extent of Rs. 73,760/- and passed the order dated 15.7.2010 by rejecting refund claim to the extent of Rs. 56,650/-. 3. The appellant is a SEZ unit in the Pharmez and a service tax registrant. As a SEZ unit, the appellant is governed by provisions of the SEZ Act, 2005. The appellant claimed refund of Rs. 1,30,410/-, predicating the refund claim on Notification No. 15/2009-ST dated 20.5.2009. Refund was claimed in respect of service tax remitted in relation to Architect services like master planning, fagade creation, interior fit outs, and landscape designing of the appellant's....

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....issioner (Appeals). The Appellate Authority, added a few more reasons besides adverting to interpretation of Architect Service in Section 65 (105) (p) of the Finance Act, 1994 and definition of Architect in Section 65(6). The learned Appellate Commissioner also referred to Section 23 of the Architects Act, 1972 and concluded that since the services of Architect/ Consulting Engineer were wholly consumed in the SEZ, Notification 15/2009-ST has no application and rejection of the refund claim to the extent Rs. 56.650/- was unassailable. 6. It requires to be noticed that exercising powers under Section 93(1) of the Act, Government issued a Notification exempting the taxable services specified in Section 65 (105) of the Act, when provided in ....

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...., 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 exempt from payment of taxes/ duties/ cesses under all enactments specified in the First Schedule. The First Schedule does not enumerate the Act (Finance Act, 1994) as among the enactments in respect of which exemption from taxes/ duties or cesses is available under Section 7 of the 2005 Act. However, Section 26(1) (e) enacts that subject to the provisions of sub-Section 2 thereof, every developer and entrepreneur shall be entitled to exemption from service tax under Chapter (V) of the Act on taxable services provided to a developer or unit to carry on the authorised....

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....loper 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 of services consumed wholly within the SEZ. 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 operationalised. Notification Nos. 9....