TaxTMI 
TaxTMI 
2017 (10) TMI 504
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....olding part disallowance due to the amending Notification. (v) On first appeal, the adjudicator s orders were confirmed against which the present appeals are filed. It was held by the first appellate authority that due to amending Notification No.15/2009-ST refund was not available due to limited scope of the exemption. 3. Both sides have been heard. 4. The Appellant s main submissions are as follows: (i) It has been held repeatedly that the amending Notification No.15/2009-ST does not in any manner deprive the benefit of exemption, given the wide scope of the overriding mechanism in the SEZ Act, in Sections 7, 26 and 51 read with Rule 31 of the SEZ Rules. (ii) The Tribunal has held in favour of SEZ units in the following cases. * Intas Pharma Ltd. vs. CST: 2013 (32) STR 543 (Tri.-Ahmd.) * Eon Kharadi Infrastructure Pvt. Ltd. vs. CCE: 2015 (39) STR 267 (Tri.-Mum.) * Reliance Industries Ltd. vs. CCE: 2016 (41) STR 465 (Tri.-Mum.) * Barclays Technology Centre India (P) Ltd. vs. CCE: 2015 (38) STR 35 (Tri.-Mum.) 5. Learned DR for the Revenue reiterates the findings of the impugned order. 6. After having carefully considered the facts on record and the ....
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....er section 98 of the Finance (No. 2) Act, 2004 in case the taxable securities transactions are entered into by a non-resident through the International Financial Services Centre; (g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers under the Central Sales Tax Act, 1956 if such goods are meant to carry on the authorised operations by the Developer or entrepreneur. Act to have overriding effect 51. 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. 6.2 The Notification No.9/2009 dated 3.3.2009 gives the exemption to taxable services from the whole of the service tax leviable under Section 66 of Finance Act, 1994 to the taxable services provided to a developer or unit of a Special Economic Zone. The relevant parts of the said Notification are reproduced herein below: Notification No. 9 / 2009 ST dated 3.3.2009 In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 ( 32 of 1994) and in supersession of the notification of....
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.... of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.9/2009-Service Tax, dated the 3rd March, 2009 which was published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 146(E), dated the 3rd March, 2009, namely:- In the said notification,- (A) in paragraph 1, in the proviso, the sub-paragraph (c), the following shall be substituted, namely:- "(c) the exemption claimed by the developer or units of Special Economic Zone shall be provided by way of refund of service tax paid on the specified services used in relation to the authorised operations in the Special Economic Zone except for services consumed wholly within the Special Economic Zone;" (2) for sub-paragraph (d), the following shall be substituted, namely:- "(d) the developer or units of Special Economic Zone claiming the exemption, by way of refund in accordance with clause (c), has actually paid the service tax on the specified services;" 6.4 The Government of India has also issued instruction....
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....ions - necessitated by the potential for wrongful availment arising from the intangibility of services. 3.11 3.12 3.13 3.14 3.15 Later decisions of the Tribunal on dispute that arose, notwithstanding the notification of the elaborate procedures of 2009 and in the face of the rigid attitude of the refund sanctioning authorities, concerned as they were with the temptation to deny eligible exemptions, expounded on the intent of Section 26 of the Special Economic Zones Act, 2005 and the need for a harmonious construction of the relevant notifications of 2009 and, in doing so, accorded a primacy to the statutory provisions. Accordingly, in re Tata Consultancy Services, the eligibility for refund, even where the procedure was susceptible to be resorted to for denial of exemption, under Section 11B of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 was laid down. Accordingly, we refer to the decision therein: "6.2 Coming to the next question, whether in respect of the services which were wholly consumed and which were fully exempt from payment of duty, whether the appellants can be granted refund under Notification No. 9/2009-S.T., dated 3-3-2009 as am....
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....e 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 appellant was not eligible for refund under Notification No. 9/2009-S.T., dated 3-3-2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944. In this view of the matter, rejection of service tax refund is not sustainable in law." 3.16 In re Intas Pharma Ltd., the very same principle was reiterated while deciding on the refund withheld by lower authorities because of a view that upfront exemption brought into force through Notification 15/2009-S.T. precluded eligibility for refund. The Tribunal held therein that: "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 Notification 9/2009 nor 15/2009 disentitle immunity to service tax enjoined by the provisions of the 2005 Act. It therefore appears that Not....
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....by a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of service tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to service tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the service tax, wherever assessed and, collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph C of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of service tax remitted on such transactions, by the providers of such services." It is also relevant to quote the provisions contained in Sec. 26(1)(e) and Sec. 51 of the SEZ Act, 2005 as reproduced ....