TaxTMI 
TaxTMI 
2022 (12) TMI 1193
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....al Dave, Learned Counsel appearing on behalf of the appellant submits that it is settled law that only for the lapse of non approval of input services in SEZ, refund cannot be rejected. Therefore he placed reliance on the following judgments : • Markers Mart and Prince Exports Vs. CCE, Jaipur-II- 2016 (2) TMI 258- CESTAT New Delhi • Harman Connected Services Corporation India Pvt Ltd Vs. CCT, Bengaluru East - 2021 (49) GSTL 11 (Tri.Bang) • Intas Pharma Ltd Vs. CST, Ahd. -2013 (32) STR 543 (Tri.-Ahmd) • Divi's Laboratories Ltd Vs. CCE, Vishakhapatanam - 2021 (54) GSTL 400(Tri.- Hyd) • Sears It & Management Services (I) Pvt Ltd Vs. CCE, Pune-III - 2018 (8) GSTL 425 (Tri.-Mumbai)....
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.... "4. We have carefully considered the submissions made by both sides. We find that the clause (c) to the Notification No. 9/2009-S.T. as amended by Notification No. 15/2009-S.T. reads as under : the exemption claimed by the developer or "(c) 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 authorized operations in the Special Economic Zone except for services consumed wholly within the Special Economic Zone". From the plain reading of the aforesaid clause (c) of the Notification No. 9/2009-S.T., it is clear that the exemption by way of refund is not available to the services consumed wholly within the Special Economic Zone however as ....
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.... find that there is no dispute that the said services have been used by the appellant for authorized operation in the SEZ. Further, I find that not mentioning the said services in the Approved List is only a technical defect and it should not debar the substantive benefit to the assessee who has utilized those services for carrying out authorized operation. I also note that both the input services have been subsequently included by the Development Commissioner of SEZ in the List of default services. This issue has been considered by the Tribunal in number of cases and in the case of Commissioner of Central Excise Mangalore Commissionerate v. Mangalore SEZ Ltd. cited supra, the CESTAT has held as under : "The Government‟s inte....
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....ty to Service Tax enjoined 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 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. The....
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....M, it was held that provisions of SEZ Act have overriding effect. Therefore, there appears to be no reason to deny the refund claim." 6.3 Further, in the case of Union of India v. Makers Malt cited supra, CESTAT has held as under : "In view of provisions of SEZ Act, 2005, services supplied to SEZ are immune from Service Tax and conditions of notification granting exemption by way of refund cannot override this immunity. Thus refund cannot be denied on ground of non-filing of authorised list of operations." 6.4 Further, in the case of Target Corporation India Pvt. Ltd. v. Asst. Commissioner of Service Tax, Bangalore cited supra, Learned Commissioner has held has under : "Non-inclusion of said service....