TaxTMI 
TaxTMI 
2019 (6) TMI 517
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....09.2014. The dispute is whether the refund claims are to be filed within one year from the date of payment or from the end of the quarter, for which payments were received. In terms of Clause 3 (iii)(f) of Notification No.12/2013-ST dated 01.07.2013, the SEZ shall submit only one claim of refund under this Notification for every quarter. It is the case of the appellant that there is lack of clarity on the overlapping period and they have interpreted the said condition as one year from the end of the quarter and have made an application accordingly. The Adjudicating Authority sanctioned refund of Rs. 2,97,179//- and rejected the balance amount as not eligible for refund. On appeal, the ld.Commissioner (Appeals) upheld the adjudication order and rejected the appeal. Hence the present appeal before the Tribunal. 3. The ld.Counsel appearing on behalf of the appellant submits that the substantial requirement of the Notification for grant of refund is receipt of services by the SEZ Unit on payment of service tax. He also submits that as long as this requirement is met, other procedural deviations can be condoned as the procedure has been stated only to facilitate verification of subst....
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.... the said Notification requires Appellant to file one application for every quarter at the same time Clause (e) of Paragraph III of the said Notification requires application to be filed within one year from the date of payment to the service provider. The provisions seem to be overlapping in nature for example, if a SEZ unit pays service tax to service provider in the month of July, 2014, the corresponding refund application has to be filed within July, 2015. In such scenario, the provisions of filing a single refund application for every quarter gets diluted. Thus, the situation desires and/or demands a SEZ unit to technically file refund application, which does not seem to be the intention of legislature, which categorically provides time limit of one year. 6.3 In order to deal with such scenario inter alia involving refund of overlapping period, Clause (e) of Paragraph III of the said Notification empowers the Assistant Commissioner/Deputy Commissioner to permit extended period of time for filling refund application. 6.4 It has been observed that the lower authority has not considered the extended period of time particularly in lieu of overlapping provisions arising out o....
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.... allows exemption by way of refund of service tax on services received by a unit located in special economic zone (SEZ unit and/or a developer of SEZ and used for the authorized operation. Accordingly, there are two specific conditions which need to be fulfilled in order to claim such exemption by way of refund. • Firstly, the unit located in SEZ or SEZ developer shall receive services on which service tax is levied and paid. • Secondly, such services should be used for Authorized operation. Further, vide Notification Number 7/2014-ST dated 11.07.2014 an explanation has been added to Clause(e) of Paragraph III of the said Notification, which provides that a service shall be treated as used exclusively for the authorized operation, if the service is received by the SEZ unit under an invoice in the name of such unit and the service is used only for furtherance of authorized operation of SEZ. 6.9 In the instant case, the Appellant had paid service tax of Rs. 8.82.495/- to the service providers raising invoices with the address of SEZ unit. Thus, in terms of explanation to Clause (e) of Paragraph III of the said Notification amended vide Notification Num....
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....es from SEZ) C 2,54,50,18,122/- Total Turnover from Authorized operations D=B+C 3,97,67,03,391/- Total Turnover from Sale of Services E 9,63,78,901/- Total Turnover F=A+D+E 6,19,41,10,948/- 6.11 In the instant case, it is the argument of the Appellant's Counsel that they do not have any DTA units, however, they do have DTA operations wherein they are providing erection and commissioning service. Moreover, DTA sale undertaken by them forms part of authorized operation, in terms of provisions of SEZ Act. 6.12 As per Section 2(C) of the Special Economic Zone Act, 2005, the term authorized operation has been defined to mean operations which may be authorized under Sec-section (2) of Section 4 and sub-section (9) of Section 15 of the said Act. Further, on cogent reading of these provisions, authorized operation means operations which a development Commissioner authorized under Letter of Intent issued to a SEZ unit. Sale to a DTA unit from SEZ unit to carry out authorized operation. 6.13 In the light of the said governing principals arising from SEZ Act, 2005 and rules made thereunder, Notification No. 12/2013-ST dated 01.07.2013 has been introdu....
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....e case of Commissioner of Customs (Import), Mumbai Vs. Dilip Kumar and Company and Others reported in 2018 TIOL 302 SCCUS- CB. The relevant observations of the said judgement are reproduced below : "38. We will now consider another Constitution Bench decision in Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, (2011) 1 SCC 236 = 2010-TIOL-95-SC-CXCB [hereinafter referred as 'Hari Chand Case' for brevity]. We need not refer to the facts of the case which gave rise to the questions for consideration before the Constitutional Bench. K.S. Radhakrishnan, J., who wrote the unanimous opinion for the Constitution Bench, framed the question, viz., whether manufacturer of a specified final product falling under Schedule to the Central Excise Tariff Act, 1985 is eligible to get the benefit of exemption of remission of excise duty on specified intermediate goods as per the Central Government Notification dated 11.08.1994, if captively consumed for the manufacture of final product on the ground that the records kept by it at the recipient end would indicate its "intended use" and "substantial compliance" with procedure set out in Chapter 10 of the Central Exc....
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.... 32. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleased if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the Court should determine whether the statute h....