2023 (10) TMI 815

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....efund claims were verified and revealed that the rebate/refund claims includes refund of Swachh Bharat Cess (SBC) and Krishi Kalyan Cess (KKC) as well in addition to Service Tax levied under section 66B of the Finance Act, 1994. Therefore, the adjudicating authority sanctioned the refund claim of Service Tax paid by the appellant, but rejected the rebate/refund claim of SBC & KKC holding that the same is not admissible in as much as there is no specific provision in the subject Notification No.41/2012-ST dated 29.06.2012 for granting refund of the said SBC & KKC. Against the said rejection of refund claim, the appellant is before us. 3. The Ld.Counsel for the appellant appeared before us and submits that the appellant filed the refund claim of the services used in export of goods and for the service tax paid in the course of export of goods, they are entitled for refund of service tax as well as SBC & KKC paid in terms of Notification No.41/2012-ST dated 29.06.2012. Therefore, refund claim cannot be denied. 4. It is his submission that section 119 of the Finance act, 2015 introduced the provision of collection of SBC. As per the said provision which relates to refund on exemp....

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....te then it will go against the statutory mandate which the respondents as creature of the very same statute one cannot be allowed to do. 7. It is his submission that last but not the least in a taxing statute there is no place for intendment that since SBC and KKC are not separately mentioned, the intention was not to refund them. Rather in a taxing statute one has to look at the clear words used therein. Hence, Service tax is said to be refunded as rebate under Section 93A then all that is levied as Service Tax has to be refunded whether the same is later added and/or levied as service tax or not. He also relied on the decision of the Hon'ble Apex Court in the case of Government of Keala And Another Vs. Mother Superior Adoration Convent [(2021) 5 Supreme Court Cases 602]. 8. On the other hand, the Ld.AR for the department submitted that the issue has been settled by the decision of Hon'ble Apex Court in the case of Unicorn Industries v. Union of India [2019 (370) E.L.T. 3 (S.C.)], wherein it has been held that when a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for different purpose cannot be said to have been exempted, th....

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....fore such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby grants rebate of service tax paid (hereinafter referred to as rebate) on the taxable services which are received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods, subject to the extent and manner specified herein below, namely :- 13. In view of above, we find that Notification No.41/2012-ST dated 29.06.2012 grants refund of service tax paid on the taxable services received by an exporter of goods and used for export of goods. 14. We find that SBC is leviable by virtue of insertion of section 119 of Finance Act, 2015, as service tax on the value of taxable services at the rate notified by the Central Government. We would like to reproduce Chapter VI inserted vide Section 119 of the Finance Act, 2015, which is as under:- Chapter VI Swachh Bharat Cess 119. Swachh Bharat Cess. - (1) This Chapter shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (2) There shall be levied and collected in accordance wi....

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....ces under Chapter V of the Finance Act, 1994 (32 of 1944), or under any other law for the time being in force. (4) The proceeds of the Krishi Kalyan Cess levied under sub-section (2) shall first be credited to the Consolidated Fund of India and the Central Government may, after due appropriation made by Parliament by law in this behalf, utilise such sums of money of the Krishi Kalyan Cess for such purposes specified in sub-section (2), as it may consider necessary. (5) The provisions of Chapter V of the Finance Act, 1994 (32 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from tax, interest and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Krishi Kalyan Cess on taxable services, as they apply in relation to the levy and collection of tax on such taxable services under the said Chapter or the rules made thereunder, as the case may be. 16. We find that Section 119 of Finance Act, 2015 levied SBC on taxable services and Section 119(2) of the said Act specifies SBC as Service Tax and Section 119(5) of the said Act specifies that the provisions of refund of Service Tax un....

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....012- ST grants refund of service tax paid on the taxable services used for export of goods by an exporter. Since SBC & KKC, both have been treated as service tax, as discussed above, the rebate of SBC & KKC is allowable under the above Notification. 22. We also find that NotificationNo.39/2012-ST dated 20.12.2012 granting refund of service tax paid on services used in providing export of services has been amended vide Notification No.3/2016-ST dated 03.02.2016 and Notification No.29/2016-ST dated 26.05.2016, so as to allow refund of SBC and KKC; similarly, Notification No.12/2013-ST dated 01.07.2013 allowing refund of service tax paid on specified services used in SEZ has also been amended vide Notification No.2/2016-ST dated 03.02.2016 and NotificationNo.30/2016-ST dated 26.05.2016, so as to allow refund of SBC & KKC, however no such amendment has been made in Notification No.41/2012-ST dated 29.06.2012 because no amendment is required as explained below:- 23. Notification No.39/2012-ST dated 20.12.2012 had allowed refund of service tax and cess and Explanation 1 was as under :- Explanation 1. - (a) service tax means service tax leviable under section 66 or section ....