TaxTMI 
TaxTMI 
2015 (3) TMI 138
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.... the Notification No.15/2009-ST (which amended Notification No.9/2009-ST) specifically provided that if services are wholly consumed in the SEZ, then the same would be exempted from payment of service tax ? 3. At the hearing of these appeals, Mr. Sahu, learned counsel appearing on behalf of the assessee-respondent raised a preliminary objection to the maintainability of these appeals in this Court. 4. He relied upon section 35-G of the Central Excise Act, 1944, and particularly the language of sub-section (1) thereof to urge that considering the order passed by the Tribunal and the manner in which the questions of law have been framed, an issue having relation to the rate of duty of excise would arise for determination and consideration of this Court. If that is how the questions of law read, then the present appeals to the High Court are incompetent. The Revenue will have to approach the Hon'ble Supreme Court meaning thereby the remedy of the Revenue to challenge the impugned order of the Tribunal would be by way of appeal to the Hon'ble Supreme Court of India. 5. He submits that the words "having a relation to the rate of duty of excise" appearing in the bracketed port....
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....he rate of duty of excise. Therefore, none of the judgments relied upon nor the provisions would apply. The preliminary objection, therefore, must be answered in favour of the Revenue and against the assessee. 9. On this limited point, we have perused the appeal paper-book and all the annexures. The West Zonal Bench of the Tribunal had before it the appeals of the assessee. They were aggrieved by the orders in appeal of the Commissioner of Central Excise, Appeals, Pune. 10. The assessee claimed to be a unit in the SEZ and engaged in providing information technology, spot services and business process outsourcing services. For rendering these output services they receive various input services such as CHA services, management consultancy services, business support services, manpower recruitment services etc. All these services are duly approved by the Development Commissioner, SEZ, as eligible input services. In respect of these input services, the assessee claimed refund of service tax paid thereon under Notification No.9/2009-ST dated 3rd March, 2009, as amended by Notification No.15/2009-ST dated 20th May, 2009, during the period October, 2009 to February, 2011. This Notificati....
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....re the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reason to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided i....
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..../2009-ST. Thereafter the Tribunal held that services provided to SEZ or units in the SEZ are deemed as export as per the provisions of section 2 clause (m) (ii) of the Special Economic Zone Act, 2005. 15. As per Rule 31 of the Special Economic Zone Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided for a unit in the SEZ. The Tribunal referred to section 51 of the SEZ Act, 2005 and held that these provisions prevail over the provisions contained in any other law for the time being in force. It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized, broader view of the provisions relating to refund has to be taken. Therefore, even if the appellants were not eligible for refund under Notification No.9/2009-ST, the appellants were clearly eligible for refund under section 11B of the Central Excise Act, 1944. Therefore, the rejection of service tax refund is not sustainable in law. 16. The argument of the Revenue before us is that if the services which have been provided or used / wholly....
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....Although this Explanation expressly confines the definition of the said expression to subsection (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate duty applicable thereto for the purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, question arise directly and proximately as to the rate of duty or other value of the goods." 18. A perusal of these observations would denote....
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....ation is as under : "Explanation to section 35E(5) of Central Excise Act Explanation : For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question - (a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986, or (c) whether the goods are excisable goods or whether the rate of duty of excise on goods is nil; or (d) whether any goods fall under a particular heading or sub-heading of the Schedule of the Central Excise Tariff Act, 1985 or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, or that any goods are or not covered by a particular notification or order ....