TaxTMI 
TaxTMI 
2023 (9) TMI 196
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....from both locations. 2.2 For providing these services to the clients of its parent companies located in the USA, appellant receives various input services. 2.3 Appellant filed an application on 23.03.2011 for refund of service tax of Rs 21,35,146/- under Notification No 9/2009-ST dated 03.03.2009, in respect of the service tax paid on services used in authorized operations in SEZ during the period October 2010 to December 2010. After scrutiny of the refund claim it was observed that the refund claim is not admissible to the appellant on following grounds: I. The default list of services for the SEZ unit located at NOIDA for authorized operation is approved by the office of the Development Commissioner, NSEZ Noida on 25.02.2011 i.e. after the claim period. Moreover, Para II of the said letter clearly states that "no exemption/ concession can be availed of prior to date of acceptance of Bond cum LUT (Form H) II. As per condition no (f) of Notification No 9/2009-ST dated 03.03.2009 the refund claim should be filed within six months from the date of actual payment of service tax to the service providers. Annexure I attached with the application does not show the actual date of pa....
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.... refund. 3.3 Arguing for the revenue learned authorized representative reiterated the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of the arguments. 4.2 For dismissing the appeal of the appellant impugned order observes as follows: "4.1 I have gone through the impugned order, the appeal & its enclosures ........... I am of the opinion that the appellant's appeal is based on following four issues: i) Whether the impugned order has traveled beyond the show cause notice dated 27/07/2011 (hereinafter referred as the SCN) issued to the appellant. ii) Whether the refund claim under the notf no 9/2009 in respect of input service wholly consumed within the SEZ is admissible. iii) Whether the refund claim in respect of services of Scientific & technical Consultancy and Custom House Agent, which were not mentioned in the application of the Appellant to SEZ Authority, though the said services were mentioned in the list of services approved by the SEZ Authority (also referred to as "Default List") was admissible. iv) Whether insurance auxiliary services, which is not mentioned....
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....umed services within SEZ and outside SEZ by way of refund - which required that the service provider should first pay service tax and then SEZ unit seek refund thereof, and then the said notification was amended by Notification No 15/2009-ST to provide additional relief to the SEZ units with respect to the services wholly consumed within SEZ so that the requirement of first paying service tax and then seeking refund thereof may be dispensed with. Further it is also not disputed that to give effect to this objective , the words except for services consumed wholly within SEZ" were inserted by the amending NN-15/2009 in the exemption NN 9/2009-ST at certain places. The insertion of clause providing complete relief regarding the wholly consumed services cannot be construed as mere technical condition. It is also not procedural in nature. Therefore the ratio of judgment in the case of Mangalore Chemical Fertilizers limited vs deputy Commissioner [1991 (55) ELT 437 (SC)] regarding waiver of provision of statute which are procedural & technical in nature are not applicable here. Contrary to it the provision of statute providing complete relief regarding the wholly consumed services are su....
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....m refund of service tax paid on Scientific Technology Consultancy Services & Customs House Agent Services, as it failed to comply with the proviso (a) of the notification No 9/2009-ST. 4.5 The appellant has submitted that the invoices pertaining to the "employees medical insurance" have been taken by the adjudicating authority as the Insurance Auxiliary Service invoices just because of the fact that because of a clerical error, the refund application mentioned the category of service as insurance auxiliary, while the invoices clearly reflected that the services were those of the employee insurance which were covered under the category of general insurance services. The appellant has not enclosed the copy of the said invoices to substantiate its claim though they made two written submissions regarding the appeal under consideration. Hence I go by the available submissions & evidences on record. The two default lists, approved by the approval committee of the respective SEZ‟s, does not include the insurance auxiliary service. Therefore the adjudication authority rightly rejected the refund claim of the appellant regarding the insurance auxiliary service. The appellant in thei....
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....s not provide for any further exemption but provides a mechanism for operation of the said scheme, where a service provider has provided the taxable services to the Unit located in SEZ, on payment of service tax. The conditions specified in the sad notification need to be read accordingly. Article 265 of the Constitution clearly lays down that "No taxes can be levied without the authority of law." When the developer of SEZ and units located in the SEZ have been given exemption from payment of all the taxes then any levy and collection of the taxes from such units is without any authority in law and thus contravenes the Article 265. In such a scenario, the amount so collected needs to be refunded to the person from whom such tax has been collected. The condition specified in proviso (a) to the notification only provides a manner for verification that the services in respect of which the refund claim has been made were received by the SEZ developer or the SEZ Unit. There can be many other ways by which the said claim with regards to the receipt of these services by the SEZ unit can be verified. Till the time the factum of receipt of these services by the SEZ unit is not disputed the ....
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....operations nor any finding to this effect has been recorded. Thus, the service tax paid on all input services used for rendition of such output services are available for claim of refund in terms of the substantive provisions of the SEZ Act. 44. In any case, the conditions imposed by the notifications issued under the provisions of the Finance Act are merely directory in nature. 45. This issue has been considered time and again. In Mast Global Business Services India Pvt. Ltd. v. Commissioner of Central Tax [2018-TIOL-3115-CESTAT-BANG], the Tribunal held that the SEZ Act had an overriding effect, in view of the provisions of Section 51 of the SEZ Act, over all other laws and, therefore, the ground for rejecting the refund claims was not tenable in law and even otherwise, approval from UAC was only procedural in nature and not a mandatory condition. The relevant portion of the decision of the Tribunal is reproduced below : "The other grounds on which the refund claims have been rejected by the impugned order is that the appellant has not produced the approved list of specified input services from the UAC to SEZ which is a mandatory condition as per the Commissioner (Appeals). ....
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.... In SE Forge Ltd. v. Commissioner of Central Excise, Coimbatore [2019 (365) E.L.T. 560 (Tri. - Chennai)], a Division Bench of the Tribunal observed that in view of the provisions of Section 26 of the SEZ Act, the notifications issued under the Finance Act cannot deprive a person from exemption of service tax. The Tribunal further held that the requirement for obtaining approval of UAC is only a procedural requirement for claiming the substantive benefit of exemption from service tax. The Department was, therefore, not justified in rejecting the claim. The relevant portion of the decision is reproduced below : "5. The issue that arises for consideration is whether the appellant is eligible for refund of service tax paid on Renting of Immovable Property Service. The original authority has rejected the refund on the ground that on the date of filing of the refund claim, the said services, viz; Renting of Immovable Property Services were not approved by the Development Commissioner, as required under Notification No. 9/2009 as amended. As per the notification, exemption is allowed in relation to authorised operations in SEZ, provided the developer or units of SEZ shall get the list o....
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....ollowing exemptions, drawbacks and concessions, namely :- (a) exemption from any duty of customs, under the Customs Act, 1962 or the Custom Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or service provided in, a Special Economic Zone or a Unit, to carry on the authorised operations by the Developer or entrepreneur; (b) exemption from any duty of customs, under the Customs Act, 1962 or the Customs Tariff Act, 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 or the Central Excise Tariff Act, 1985 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; xx xx xx (e) exemption from service tax under Chapter-V of the Finance Act, 1994 on taxable services provided to a Developer or Unit to carry on the authorised operations in a Special Economic Zone; 37. Thus, Section 26(1) of the ....
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....aws." C. Mumbai Bench in case of ECLERX Service Ltd [2023 (72) GSTL 99 (T-Mum) Affirmed in 2023 (72) GSTL 4 (Supreme Court)] held as follows: 2. It was alleged that between June 2009 and February 2011, the appellant herein had rendered "taxable service‟ valued at Rs. 80,16,46,587 on which the liability of Rs. 8,25,69,598 should have been discharged and, in accordance with Notification No. 9/2009-S.T., dated 3rd March 2009 and as amended by Notification No. 15/2009-S.T., dated 20th May 2009, claimed as a refund thereafter upon compliance with the conditions specified therein. Likewise, it was alleged that for the period from 1st March 2011 to 14th June 2011, the appellant herein had rendered taxable service valued at Rs. 16,86,45,901 on which tax liability of Rs. 1,73,70,528 should have been discharged and, in accordance with Notification No. 17/2011-S.T., dated 1st March 2011, should have been backed by Form A-1 which, upon scrutiny, was found to have been verified only on 14th June 2011. It is further alleged that the appellant herein, for the period from 1st July 2012 to 31st March 2013 had availed of exemption against form A-I which, having been dated only on 29th Augu....