TaxTMI 
TaxTMI 
2021 (10) TMI 642
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....olis SEZ Unit, Hyderabad DLF SEZ, Kolkata Bantala SEZ, etc. In the course of authorized operations at the SEZ units, the appellants availed various input services on which they are required to pay Service Tax. In terms of Section 7 of the Special Economic Zones Act (hereinafter referred to as the 'SEZ Act'), 2005, any goods or services exported out of or imported into or procured from the domestic area by a unit in a Special Economic Zone or a developer, are exempted from payment of taxes, Duties or cess leviable under various enactments. The said exemption is provided in two ways, namely: (1) by way of refund of Service tax paid on the 'specified services' received by a unit located in a SEZ or the developer of SEZ and used for the authorized operations and (2) by way of not paying Service Tax ab initio. Among the two, the appellant has chosen the option of getting exemption by way of refund. As per Notification No. 09/2009-ST dated 03.03.2009, as amended vide Notification No. 15/2009-ST dated 20.05.2009 superseded by Notification No. 17/2011-ST dated 01.03.2011, the refund claim can be preferred for refund of Service tax paid on input services used in the authorized operations. T....
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.... that all the refund claims were filed within one year from the date of payment of Service Tax. The same were returned by the Department directing the appellant to produce necessary documents. That thereafter, the appellant has re-submitted the refund claims along with the required documents. That the appellant has filed the refund claims within time and there was no delay in filing the same. When the refund claims had been returned with direction to furnish necessary documents, the Department cannot deny the refund claims and allege that the claim re-submitted is time-barred. 3.1.3 It is asserted by the Learned Consultant that the original claims were returned only for rectifying the defects of not furnishing necessary documents and they were not rejected after considering the merits. The appellant had re-submitted the claims along with necessary documents later. That it is the settled position of law that the date of filing the original claim should be reckoned for computing the period of limitation; that the date of re-submission has been taken as the relevant date for computing the limitation by the Adjudicating Authority, which is erroneous. 3.1.4 To support his argument, he....
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....s. That the Department was of the view that certificate of the auditor who was engaged during the relevant time when the services were provided has to certify the financial statements. He argued that the intention of the Notification is for certification of the transactions by the auditor, who is the statutory auditor at the point of time when the certification is done. That since the auditor who was engaged at the time of filing the refund claims has certified the statements, the authorities below ought not to have rejected the refund claims on this ground. 3.3.1 The third ground for rejection of the refund claims is that certain services are not included in the list of 'specified services'. It is submitted by the Learned Consultant for the appellant that all the services were used for authorized operations by the appellant and these services have been approved as 'specified services' by the Unit Approval Committee (UAC) / Development Commissioner of SEZ. That the authorities below then cannot apply their own view to hold that such services are not specified services for authorized operations. 3.3.2 He relied upon the decision in the case of M/s. Metlife Global Operations Suppor....
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.... accepted as proof of payment of tax / Duty, Learned Consultant relied upon the decision in M/s. Tata Motors Ltd. v. Commissioner of Central Excise, Customs & Service tax, Bangalore-I reported in 2019 (6) TMI 943 - CESTAT, Bangalore as well as the decision of the Hon'ble High Court of Madhya Pradesh in Union of India v. M/s. Kataria Wires Ltd. reported in 2009 (241) E.L.T. 31 (M.P.) 4.1 On the other hand, Ms. Sridevi Taritla, Learned Authorized Representative, appeared on behalf of the Department. She submitted that the refund claims were filed by the appellant on the last day without any supporting documents. That therefore, these claims were returned to the appellant with a deficiency memo, the details of which are tabulated as under: Sl. No Appeal No. Period Appeal before Commr. (Appeals) No. & dt. Notifn. Under which refund claim is filed Last date to file claim Original date of filing claim by appellant Date of return of claim by Dept. Reference of Deficiency Memo issued by Dept. Date of re- submission of the claim No. of days delay in submission of refund claims 1. April 115/2016 ....
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.....13 29.11.13 06.12.13 C.No.IV/16 /712/2013 LTG, VI dt. 06.12.13 768 12. May 2013 123/2016 (P) dt. 04.11.2016 31.05.14 30.05.14 05.06.14 C.No.IV/16 /635/2014 LTG, VI dt 05.06.14 586 4.2 That all the refund claims were re-submitted only after a lapse of many months. That even on resubmission of the refund claims, they were not supported by necessary documents, as prescribed in paragraph 3(f) of the Notification. That the appellant has not furnished any reasons for the delay in re-submission of the refund claims. 4.3 She referred to paragraph 2.4 of the CBEC's Excise Manual of Supplementary Instructions, 2005 to argue that the claim can be processed only if the necessary documents are filed along with the claim for refund. Since the claims were not supported by requisite documents, they were returned within the time-limit of 15 days, as prescribed in paragraph 3.2 of the CBEC's Excise Manual of Supplementary Instructions, 2005 4.4 She relied upon the decision in M/s. KLA India Public Ltd. v. Commissioner of Central Excise, Meerut-I reported in 2016 (41) S.T.R. 511 (Tri. - Del.)....
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....cy Memo that the refund claim is returned to the appellant. There is no decision on merits; there is no application of mind or a speaking order rejecting the claim. The Learned Authorized Representative for the respondent has referred to the CBEC's Excise Manual of Supplementary Instructions, 2005 to argue that if a claim has been returned, the same has to be re-submitted within the prescribed period. However, it is seen that in the Deficiency Memo issued to the appellant, the Department has not referred to such Excise Manual of Supplementary Instructions or prescribed any time-limit within which the appellant has to re-submit the refund claim. 6.2.3 The appellant has re-submitted the claim on 25.08.2015 and different dates. A specimen of such re-submission letter is reproduced as under: 6.3 It is argued by the Learned Consultant for the appellant that they have establishments located in various locations and collection of all documents, correlation and preparation of refund claims require much time. We have to say that even though the appellant has taken longer time for re-submission, the refund claims have been filed within reasonable time. 6.4.1 The Hon'ble High Court of Delh....
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....ent and on which no review petitions, SLPs have been filed- reg. . . . 4. Decision of the Hon'ble High Court of Gujarat dated 17.12.2015 in the matter of Apar Industries (Polymer Division) vs Union of India in Special Civil Application No. 7815 of 2014 [2015-TIOL-2859-HC-AHM-CUS] 4.1 Department has accepted the order of the Hon'ble High Court of Gujarat in the case of Apar Industries (Polymer Division) vs Union of India in Special Civil Application No. 7815 of 2014. The issue examined in the order is as follows, Manufacturer exporter, M/s Apar Industries (Polymer Division) filed Rebate claims in incorrect format under Rule 19 instead of as required under Rule 18. The same was re-filed correctly but department held that the subsequent filing was time barred. The Hon'ble Court held that the intention of claiming rebate was clear and first application should have been treated by the department as rebate application. Whatever defect arose from the incorrect filing could have been rectified. In such situations, re-submission should be seen as a continuous attempt and therefore in the matter department was directed to examine the rebate claims of the petitioner on merits." ....
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....ities 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 (74 of 1956) if such goods are meant to carry on the authorised operations by the Developer or entrepreneur. (2) The Central Government may prescribe the manner in which, and the terms and conditions subject to which, the exemptions, concessions, drawback or other benefits shall be granted to the Developer or entrepreneur under sub-section (1)." (Emphasis applied) 6.6.2 Section 51 of the SEZ Act, 2005 reads as under: "51. Act to have overriding effect.-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." 6.6.3 It is pertinent to note that in exercise of the powers conferred under sub-section (2) of Section 26 of the Act, no conditions have been prescribed in regard to the manner to claim exemption from payment of Service Tax for the services provided to SEZ units. The No....
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....operate and maintain the Special Economic Zone; (ii) the unit of the Special Economic Zone has been approved by the Development Commissioner or Board of Approvals, as the case may be, to establish the unit in the Special Economic Zone; (iii) the developer or unit of a Special Economic Zone shall maintain proper account of receipt and utilisation of the said taxable services. Explanation. - For the purposes of this notification, - (1) "Board of Approvals" means the combined Board of Approvals for export oriented unit and Special Economic Zone units, as notified in the Official Gazette, from time to time by the Government of India in the Ministry of Commerce and Industry; (2) "developer" means a person engaged in development or operation or maintenance of Special Economic Zone, and also includes any person authorised for such purpose by any such developer; (3) "Special Economic Zone" means a zone specified as Special Economic Zone by the Central Government in the notification issued under clause (iii) of Explanation 2 to the proviso to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944)." (Emphasis applied) 6.6.5 The conditions in the subsequent Not....
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....ry on the authorized operations in a SEZ. Section 51 of the SEZ Act provides for an overriding effect to the provisions of the SEZ Act. The provisions of section 26 read with rule 31 of the SEZ Rules thus, have overriding effect over anything inconsistent contained in any other law for the time being in force, which would include the Finance Act. It needs to be noted that the Notification dated March 3, 2009 has been issued in exercise of the powers conferred by section 93 of the Finance Act. Thus, when the services rendered by the appellant are fully exempted from service tax in terms of ST/52470/2016 the provisions of the SEZ Act, the condition of exemption by way of refund imposed under the Notification issued under the Finance Act would be inconsistent with the provisions of the SEZ Act. It also needs to be noted that the SEZ Act was enacted in 2005, much after the enactment of the Finance Act in 1994. . . 21. Thus, what follows is that the Commissioner was not justified in examining whether the conditions set out in the Notification dated March 3, 2009 were satisfied or not for grant of any exemption from service tax. Section 26(2) of the SEZ Act does provide that the Ce....