TaxTMI 
TaxTMI 
2021 (10) TMI 642
X X X X Extracts X X X X
X X X X Extracts X X X X
....nits are Chennai MEPZ SEZ Unit, Kochin Technopolis 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 As per Notification No. 09/2009-ST dated 03.03.2009, as amended vide Notification No. 15/2009-ST dated 20.05.2009 superseded by Notification No. 17/2011-ST dated 01.03.2011, the refund claim can be preferred for refund of Service tax paid on input....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellant adverted to the dates on which the refund claims were submitted and argued 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 b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plied with. The appellant has furnished the certificate of the auditor who was engaged at the time of making the refund claims. 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 specif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Show Cause Notice, the Department has not disputed that the services were provided to SEZ units. 3.4.4 To support his contentions that photocopies can also be 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....C.No.IV/16 /621/2014 LTG, VI dt.04.04.14 647 8. Feb 2013 119/2016 (P) dt. 04.11.2016 28.02.14 28.02.14 07.03.14 C.No.IV/16 /611/2014 LTG, VI dt.07.03.14 678 9. June 2013 120/2016 (P) dt. 04.11.2016 30.06.14 30.06.14 07.07.14 C.No.IV/16 /637/2014 LTG, VI dt.07.07.14 556 10. Jan 2013 121/2016 (P) dt. 04.11.2016 31.01.14 31.01.14 10.02.14 C.No.IV/16 /606/2014 LTG, VI dt.10.02.14 706 11. Nov 2012 122/2016 (P) dt. 04.11.2016 30.11.13 29.11.13 06.12.13 C.No.IV/16 /712/2013 LTG, VI dt. 06.12.13 768 12. May 2013 123/201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....03.2014 31.03.2014 04.04.2014 8 119/2016 28.02.2014 28.02.2014 07.03.2014 9 120/2016 30.06.2014 30.06.2014 07.07.2014 10 121/2016 31.01.2014 31.01.2014 10.02.2014 11 122/2016 30.11.2013 29.11.2013 06.12.2013 12 123/2016 31.05.2014 30.05.2014 05.06.2014 6.2.1 It is not disputed that all claims had been filed on or before the last date for filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents. The Deficiency Memo dated 10.07.2013 reads as under: " Please refer to your letter CTS/LTU/028/2013/GK dated 28th June, 2013 under which a refund claim for Rs. 91,96,902/- has been filed in terms of Notification No. 17/2011-ST dated 01-03-2011 claiming refund of service tax paid on the services used in the authorised operations of SEZ. Preliminary scrutiny of refund is done and it is noticed that the following documents were not filed along with the claim. (i) Original input service documents required under the Notification. (ii) Documentary proof of payment of service tax. In view of the abo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bate claims filed by the assessee therein. The claims were filed by the assessee on 05.11.2007 and the same were returned on 28.12.2007, seeking specific clarifications with regard to the date of shipment of the goods. The petitioner had furnished proper documentary evidence in regard to this and thereafter filed the claims along with necessary documents and clarifications on 23.12.2008. Show Cause Notice was issued proposing to reject the rebate claims on the ground of limitation alleging that the claims had been filed only on 23.12.2008 which is beyond the period of one year as prescribed in Section 11B of the Central Excise Act, 1944. The Hon'ble High Court held that in view of the fact that the rebate claim scheme has been introduced as a beneficial scheme to encourage exports, it has to be construed in a liberal manner and the relevant date for calculating the period of limitation should be taken as 05.11.2007, when the claims were originally presented. 6.5.1 It would also not be out of place to mention the Circular No. 1063/2/2018-CX dated 16.02.2018 issued by the Central Board of Excise and Customs (CBEC) with regard to the acceptance of the Orders of higher fora, namely,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....authorised operations by the Developer or entrepreneur; (b) exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods exported from, or services provided, from a Special Economic Zone or from a Unit, to any place outside India; (c) exemption from any duty of excise, under the Central Excise Act, 1944 (1 of 1944) or the Central Excise Tariff Act, 1985 (5 of 1986) or any other law for the time being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) drawback or such other benefits as may be admissible from time to time on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication would help to appreciate better. Notification No. 04/2004-S.T. dated 31.03.2004 (superseded) is reproduced as under: "Service tax exemption to services provided to a Developer or units of Special Economic Zone - Notification No. 17/2002-S.T. superseded 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 the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue), No. 17/2002-Service Tax, dated the 21st November, 2002, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated the 21st November, 2002, vide, G.S.R. 777(E), dated the 21st November, 2002, except as respects things done or omitted to be done before such supersession, the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts taxable service of any description as defined in clause (90) of sub-section (1) of section 65 of the said Act provided to a developer of Special Economic Zone or a unit (including a unit under construction) of Special Economic Zone by any service provid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....langana and Andhra Pradesh in the case of M/s. GMR Aerospace Engineering Ltd. (supra). This Tribunal in the case of M/s. TVS Logistics Services Ltd. v. The Principal Commissioner of Service Tax, Chennai South reported in 2021 (8) TMI 450 - CESTAT, Chennai has applied the above decision of the Hon'ble High Court of Telangana and Andhra Pradesh and held that Section 51 of the SEZ Act, 2005 has an overriding effect. The denial of the benefit of exemption by relying upon procedural requirement of a Notification would be against the provisions laid down in the SEZ Act. 6.6.7 The Tribunal in the case of M/s. DLF Assets Pvt. Ltd. (supra) has held as under: "17. The Notification dated March 3, 2009 has been issued in exercise of the powers conferred by section 93 (1) of the Finance Act. It is for this reason that it has been contended by learned Counsel for the appellant that the said Notification dated March 3, 2009 would not have any relevance to the case of the appellant when it sought exemption from payment of service tax under the provisions of section 26(1)(e) of the SEZ Act read with rule 31 of the SEZ Rules. 18. The contention advanced by the learned Counsel fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....09-ST and 17/2011-ST, as applicable for different periods) cannot be pressed into application to deny the substantive benefit of exemption enshrined in Section 26 of the SEZ Act, 2005. 6.7 We therefore hold that the rejection of refund claims on the ground of being time-barred cannot sustain and requires to be set aside, which we hereby do. 7.1 The second issue is that the auditor's certificate is not signed by the statutory auditor who was engaged during the period when the refund is claimed. Learned Consultant for the appellant has explained that the auditor's certificate has been issued by M/s. Price Waterhouse & Co. who were engaged at the time of filing the applications for claiming refund, who were the statutory auditors at that point of time. 7.2 When the statutory auditor has given the certificate, we do not find any error so as to deny the refund on the allegation of the certificate not being issued by the proper person as required in the Notification. The rejection of refund claims on this ground is set aside. 8. The third issue on which the refund has been rejected is that the services are not used for authorized operations. When the services have been approv....