TaxTMI 
TaxTMI 
2023 (12) TMI 1301
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....nt as CENVAT Credits, hence could not have been considered for computation of the refunds due, as per the order in original detailed in table below:- Refund Claim Order in Original Date Period Amount No Date 30.09.2013 Oct 12 to Dec 12 11208523 65/R/AC/CGST/DI/2018-19 13.08.2018 29.09.2015 Jul 14 to Sept 14 2866101 117/R/AC/CGST/DI/2018-19 17.10.2018 29.09.2015 Oct 14 to Dec 14 3836800 119/R/AC/CGST/DI/2018-19 17.10.2018 30.12.2015 Jan 15 to Mar 15 4064450 120/R/AC/CGST/DI/2018-19 17.10.2018 1.3 These orders were challenged by the appellant before the Commissioner (Appeal), who has vide his orders as detailed in table below disposed of the appeals. Aggrieved by the impugned orders appellants have filed these four appeals as detailed in table below: Appeal No Order in appeal Order in Original No Date No Date ST/70377/2020 NOICUSTM000-APP1395-19- 20 11.02.2020 65/R/AC/CGST/DI/2018-19 13.08.2018 ST/70379/2020 NOICUSTM000-APP1481-19- 20 28.02.2020 117/R/AC/CGST/DI/2018-19 17.10.2018 ST/70381/2020 NOICUSTM000-APP1483-19-20 28.02.2020 11....
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....o. 2 (f) of Notification No. 40/2012-ST dated 20.06.2012, the exemption contained in the notification shall be allowed to the unit of a SEZ claiming the exemption by way of refund, on the condition that the said unit of a SEZ should have paid the amount indicated in the invoice, bill or as the case may be, challan, including the service tax payable, to the person liable to pay the said tax or the amount of service tax payable under reverse charge, as the case may be, under the provisions of the said Act. Thus, in terms of the provisions contained under Rule 2(1)(d)(C) of the Service Tax Rules read with Section 26 read and Section 51 of the SEZ Act, and further read with Rule 31 of the SEZ Rules, the refund is allowable to the Appellant irrespective of whether the said service is specifically approved or otherwise. In view of the aforesaid legal provision, it was the submission of the Appellant that since the Appellant was the person liable to deposit service tax in relation to `sponsorship service' received by it, there was no requirement to get the said services approved as the said services have been used in relation to authorized operations of the Appellant, The object behin....
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....eightage in the contention of the party and disallow the credit on this count 5.4 As regards 'Room Rental Service' involving an amount of Rs. 16265/-,I find that the same has been withdrawn by the party vide their reply letter dated 11.06.2014 to Show Cause Notice wherein they mentioned that this amount was claimed in excess due to incorrect computation and is a bonafide error on their part. 5.5 I find that the appellant contested forcefully that there was violation of natural justice but nothing was found on record in this regard as the appellant had himself admitted that they were afforded the opportunity of personal hearing by the adjudicating authority on 27.02.2018 which was attended by Sh. Tarique Rehman, Manager(Finance) of the party and Sh. Vishal Kumar, Advocate, on the behalf of the appellant. When they attended PH, they could have submitted their written explanation to the adjudicating authority. In view of the above, the allegation of the appellant does not stand. OIA No NOI-CUSTM-000-APP-1481-19-20 dated 28.02.2020 5.1 I. find that the adjudicating authority denied the refund mainly on the grounds i.e various input services w....
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....k CENVAT Credit on the various input services which did not appear to be eligible in terms of said Notification as these services were not approved by the Development Commissioner, and some of invoices were addressed to the outside of SEZ premises. Sl. No Description of Service 2. Repair and Maintenance Service 3. Sponsorship Service 4. Membership Fee 5. Manpower Recruitment & Supply Agency Services 6. Telecommunication Service 7. Insurance Auxiliary Service 8. Security Agencies 9. Charted Accountant Service 10. Non-Executive Director Fee 11. Photography Service 12. Works Contract Service 5.1 I. find that the adjudicating authority denied the refund mainly on the grounds i.e various input services were not approved by the Development Commissioner, SEZ, as per requirement of the Notification and some of the invoices on which credit was taken were addressed to the outside of SEZ premises; even some invoices were missing .On going through the Annexure-I enclosed with the SCN, I find that credit as well as refund has been denied mainly on the following reasons for inadmi....
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....invoices on which credit was taken were addressed to the outside of SEZ premises; even some invoices were missing .On going through the Annexure-I enclosed with the SCN, I find that credit as well as refund has been denied mainly on the following reasons for inadmisibility; 1 Some services were not approved in the default list. 2 Some services were used at unregistered premises. 3 Invoice not produced 5.2 Taking up the first issue, I observe that the requisite approval for the specified services was to be accorded by the approval Committee, which was one of the essential condition of Notification No 12/2013. If any service was not approved as specific service that same could not be taken for the refund as per said Notification. The conditions provided under the said notification says that: "for the purpose of claiming exemption, the Unit of a SEZ or developer shall obtain a list of services that are liable to service tax as are required for the authorized operations approved by the Approval Committee (hereinafter referred to as the specified services) of the concerned SEZ;" hence credit taken on Services which are not approved b....
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....same be allowed. • Refund in respect of service tax paid in relation to invoices inadvertently raised to unit of appellant outside SEZ cannot be denied, more so, when the services have been availed by the appellant in relation to authorized operations. 2.3 Learned authorized representative reiterates the findings recorded in the impugned order. 3.1 I have considered the impugned orders along with the submissions made in the appeal and during the course of arguments. 3.2 The issue involved in the present case is vis a vis the condition provided in the Notification No 40/2012-ST & 12/2013- ST in terms of which these fund applications have been made. The said condition reads as follows: "(c) for the purpose of claiming exemption, the Unit of a SEZ or developer shall obtain a list of services that are liable to service tax asare required for the authorised operations approved by the Approval Committee (hereinafter referred to as the specified services) of the concerned SEZ;" 3.3 The issue in respect of applicability of the said condition for considering the application of refund made under the said notification is no longer res-integra and has been adj....
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.... 4.5 We also find that the issue involved in the present appeal is no longer res-integra. Similar view has been expressed by the tribunal in following cases A. In case of Metlife Global Operations Support Center (P) Ltd. [2021 (46) GSTL 418 (T-Del)] = 2021-TIOL-10- CESTAT-DEL following has been held: "40. This issue relates to proviso (a) of the notification dated March 3, 2009. It provides that the Developer or Units of SEZ shall get the list of services specified in Section 65(105) of the Finance Act as are required in relation to the authorized operations in the SEZ, approved from the UAC. 41. It has been pointed out by Learned Counsel for the appellant that the output services rendered by the SEZ unit of the appellant were only for authorized operations. The contention of the Learned Counsel for the appellant, therefore, is that not only does the impugned order not contain any specific finding or quantification, but even otherwise the requirement of grant of approval by the UAC cannot be considered as a mandatory condition to override the exemption that has been granted under Section 26 of the SEZ Act and the SEZ Rules framed thereunder. It i....
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....ping in view, the intention of the Government in enacting the SEZ Act and giving special fiscal concessions to SEZs, I am of the considered opinion that this is only a procedural and is not a mandatory condition as held by the Commissioner (Appeals). Further the decisions relied upon by the appellant clearly hold that the SEZ Act has a overriding effect over other laws. Therefore, this ground on the basis of which refund claims have been rejected is not tenable in law." (emphasis supplied) 46. In M/s. ONGC Mangalore Petrochemicals Limited v. Commissioner of Central Excise & Central Tax, Mangalore Commissionerate [2019-VIL-140-CESTAT-BLR-ST] = 2018- TIOL-1435-CESTAT-BANG, the Tribunal again held : "6. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant being SEZ is entitled to refund of Service Tax paid on input service used for authorized operations. Further, I find that as per Notification No. 12/2013-S.T., dated 1-7-2013, the only requirement is that the appellant is required to file the list of approved services which have been used by them for authorized operations. Further, in t....
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....s which was only default list or rather a general list applicable to all SEZ. It is seen that Development Commissioner has approved the list including Renting of Immovable Property Services vide letter dated 15-9-2009. It is not disputed that Renting of Immovable Property Service was availed by the appellant for the disputed period. The invoices shows the payment of service tax on such services. The Approval Committee has approved such services vide their letter dated 15-9-2009. The requisite for obtaining approval is only a procedure to be complied with, for the substantive benefit of exemption from payment of service tax. When the services have been approved, the benefit of exemption cannot be denied. Section 26 of the SEZ Act, lays down provisions for exemption from duties and taxes. Section 51 of the said Act provides for overriding effect. Therefore the immunity provided from paid service tax cannot be taken away by the procedural prescriptions of Notification No. 9/2009 or 15/2009. These notifications are calibrated to enable recipients of taxable services of SEZ, etc., to get benefit of exemption of the service tax. In any case, since the appellants have obtained approval fo....
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....of the Finance Act, 1994. In addition to the general principle of a specific law (pertaining to SEZ) prevailing over the general law (levying customs, central excise or service tax) and the later enactment (such SEZ Act, 2005) prevailing over the earlier enactments (Central Excise Act, 1944, Customs Act, 1962 and Finance Act, 1994), in the SEZ Act, the Parliament has explicitly resolved this inconsistency between the laws. Section 51 of the SEZ Act states that the provisions of SEZ Act override any other provisions of other laws. It reads as follows : 51.(1) 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. 38. Thus, insofar as supplies for authorised operations of SEZ developers and units are concerned, Section 26 of the SEZ Act overrides the charging sections in all the three Acts. 39. The charging sections, having been overridden by the SEZ Act passed by the Parliament, no legal authority to levy and collect central excise duty, customs duty or service tax for goods or services su....
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....e valued at Rs. 12,92,07,189 was rendered without discharging liability of Rs. 1,59,70,009. In sum, the recovery of Rs. 11,59,10,135 was ordered on account of breach of condition in the respective notifications embodying the procedure by which the appellant could have availed exemption from service tax on supply of services to units in Special Economic Zones (SEZ). .... 6. The issue to be decided on this appeal is plain and simple enough: whether the notifications relied upon by the adjudicating authority can invalidate exemption accorded under : ' 26. (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur shall be entitled to the following 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....
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....for a shorter or longer time, does not in any way supplant the exemption accorded to the impugned supply of services. Furthermore, the findings of the adjudicating authority do not arrive at a conclusion that, but for the said procedural infirmities, the eligibility of the appellant to render such services without payment of tax was in question. In the light of decision cited supra, the overriding nature of the exemption afforded by Section 26 of Special Economic Zones Act, 2005 and the breach of conditions being procedural, we have no hesitation in setting aside the demand pertaining to the rendering of services to M/s. Credit Suisse Service (India) Pvt. Ltd." 3.4 I view of the above I do not find any merits in the impugned orders to the extent it seeks to deny CENVAT Credit/ Refund relying on this ground. Similar view has been expressed in the following decisions: • Tega Industries Ltd. {2022 (67) GSTL 81 (T-Ahmd)] • Intas Pharmaceuticals Ltd. [2022 (64) GSTL 216 (TAhmd)] • Divi's Laboratories Ltd. [2021 (54) GSTL 400 (T-Hyd)] • Herman Connected Services Corporation India Pvt Ltd. [2021 (49) GSTL 11 (T-Bang)] • S....