TaxTMI 
TaxTMI 
2018 (4) TMI 672
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....re registered under service tax. Thay are allowed to procure goods without payment of Central Excise duty/ Service Tax in terms of provisions of SEZ Act, 2005 read with SEZ Rules. They are receiving various services from the service providers. In terms of Notification No. 4/2004 - ST dt. 31.03.2004 the services provided to a developer of SEZ or unit located in SEZ is exempted. The Appellant being SEZ Unit is entitled for the exemption which is available to them by way of refund in terms of Notification No. 9/2009 ST dt 03.032009 as amended by Notification No. 15/2009 - ST. In order to get the refund the units located in SEZ has to get the list of services approved from the Development Commissioner of the SEZ. The Appellant applied for appro....
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....claim and that the service has been wholly consumed in SEZ hence refund under the notification is question is not available. Hence the present appeals. 2. Shri Rajesh Ostwal, Id. Advocate appearing for the Appellant submits that the impugned order is not sustainable as the adjudication order and the Appellate Orders have travelled beyond the allegations of show cause notice. He relies upon the judgment of Hon'ble Supreme Court in case of Toyo Engineering 2006 (201) ELT 513 (SC). He submits that the proposal in the show cause notice was to reject the refund claim on the ground that the services were not approved by the Approval committee at the time for which refund is being sought. There was no allegation in the show cause noti....
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.... 3. Shri S.R. Nair, Ld. Examiner (AR) appearing for the revenue reiterates the findings made in the impugned order. 4. We have heard both the sides and perused the records of the case. We find that the Commissioner (Appeals) has rejected the claim on the ground that the services were wholly consumed in SEZ and hence not eligible for refund. We are not in agreement with the above reasoning of the Appellate Authority as the provisions of the SEZ Act would override the Notification in question. From the provisions contained in Section 26(1)(e) of the SEZ Act, read with Rule 30(10) of the SEZ Rules, 2006, it can be seen that no service tax is payable on the services provided by a service provided to a SEZ unit. Further, Sec. 51 of t....
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....rations in a SEZ and received by a developer or units of a SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable thereon under Section 66 of the Finance Act, 1994. The refund procedure given below for operationalising the exemption applies to services which are procured from outside in respect of which the service tax liability has to be discharged first and the refund claim subsequently. In the case of services which are wholly consumed within the SEE, there is no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitled for refun....
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.... 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. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming 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 ....