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TaxTMI 
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2015 (4) TMI 394
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....maceutical Special Economic Zone, under the Special Economic Zone Act, 2005 read with Special Economic Zone Rules, 2006. The appellants, during the period of setting up of the plant, before starting the commercial production, received various services and paid the service tax. The appellant obtained a letter of approval from the Development Commissioner for setting up of the plant for manufacturing of the Medicaments. Notification No.4 /2004-ST, dt.31.03.2004 , provides exemption from payment of service tax of any taxable service procured by a unit or a developer situated in a Special Economic Zone. The said notification was superseded by Notification No.9 /2009-ST, dt.03.02.2009 , directing that any taxable service procured by a unit or a ....
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.... that this issue is also covered in their favour in the case of Intas Pharma Ltd Vs CST Ahmedabad - [2013 (32) STR 543 (Tri- Ahmd )] and Tata Consultancy Services Ltd Vs CCE ( LTU ) Mumbai - [2013 (29) STR 393 (Tri).] He further submits that the refund was also denied on the ground that the appellant failed to produce the proof that the service was consumed by them. In this context, it is submitted that the service provider raised the bills in the appellant's name and it is clearly evident that they have consumed the service in SEZ . It is further submitted that there is no contrary evidence placed by the Revenue that it was not consumed by them . It is also submitted that the service is intangible nature and therefore, there is no pres....
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....ervices used for the authorized operation. The refund in respect of certain services beyond the list of the Development Commissioner are in clear violation of the condition of SEZ Act. 5. After hearing both the sides and on perusal of the records, we find that the main issue involved in these appeals are that the appellants filed the refund claim in terms of Notification No.9 /2009-ST (supra) in respect of certain services which were used prior to commercial production. Both sides agreed that this issue is covered by the appellant's own case as reported in [2013 (30) STR 616 (Tri- Ahmd )] which was upheld by Hon'ble Gujarat High Court. So, in our considered view, the denial of refund on this ground cannot be sustained. In this cont....
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....ch such drugs are exported, the assessee is required to obtain approval before starting commercial production. Thus the final product can be manufactured only upon approval of the regulatory authority after the product undergoes technical testing and analysis. Under the circumstances, it cannot be gainsaid that the activity of testing and analysis of the trial batches is in relation to the manufacture of final product. Unless such testing and analysis is carried out, it would not be possible to produce the final product inasmuch as unless the trial batches are sent for testing and analysis and approval is obtained, the final product cannot be manufactured. Under the circumstances, the services availed in respect of technical testing and ana....
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....J Civil Application No. 368 of 2013 for stay and the same is also consequently dismissed." 6. We also noticed that the Tribunal in the case of Intas Pharma Ltd (supra) held that under Section 7 and 26 of the SEZ Act 2005, the taxable service provided to developer or unit to carry out authorized operation in SEZ is exempted from service tax. The Notification No.9 /2009- ST, cannot disentitle the immunity enjoyed by SEZ Act. The relevant portion of the said decision is reproduced below :- "11. 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 the overarching provisions of Sections 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Noti....
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....e adjudicating authority and affirmation of such rejection by the Commissioner (Appeals), to the extent Rs . 56,650/-, in relation to Architect, Interior Decorators and Consulting Engineer services provided by M/s. Venkataramanan Associates, is unsustainable and is so declared. The order impugned herein namely the Order-in-Appeal dated 29-10-2012 is set aside. Appellant shall be entitled to refund of Rs . 56,650/-." 7. On the other issues, on a query from the Bench, the ld.Advocate placed a statement/chart before the Bench. But, all other issues are not clear from the said statement, as stated by the ld.Authorised Representative. Both sides failed to demonstrate and clarify the other issues, where the refund claims were denied and it is di....