TaxTMI 
TaxTMI 
2024 (3) TMI 1325
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....h 2(c) of Notification No. 09/2009-S.T. dated 03.03.2009, a developer or unit of a SEZ can claim exemption of Service Tax of taxable services used in relation to authorized operations in the SEZ by way of refund of Service Tax paid on such services. In terms of paragraph 2(c) of the amended Notification No. 15/2009-S.T. dated 20.05.2009, the exemption of Service Tax for taxable services used in relation to authorized operations in the SEZ was available by way of refund, except for services consumed wholly within a SEZ. The appellant used the services wholly for authorized operations in the SEZ and accordingly claimed refund of Rs.18,62,867/- vide their application dated 15.02.2010. 2.1 A Show Cause Notice dated 03.03.2010 was issued to the appellant proposing to deny the refund. 2.2 The Assistant Commissioner issued Order-inOriginal No. 04/S.Tax(Ref)/08/2010/SBP-I/2011 dated 11.01.2011 denying the refund on the following grounds: - ▪ The refund claim raised against invoices issued by some service providers was rejected on the allegation that the same was time barred. ▪ For the invoice raised by M/s. Brawny Engineering Services, the Ld. Assistant Commissioner rejec....
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.... bar since in the instant case, the refund claim has not been made under Notification No. 09/2009-S.T. and hence, the limitation of six months prescribed under the said notification would not apply. The refund should be allowed under Section 83 of the Finance Act read with Section 11B of the Central Excise Act wherein the time-period of claiming refund is one year. In this regard, the appellant placed reliance on the decision in the case of M/s. Tata Consultancy Services Ltd. v. Commissioner of Central Excise and Service Tax (LTU), Mumbai [2012 (8) TMI 500 - CESTAT, Mumbai = 2013 (29) S.T.R. 393 (Tri. - Mum.)] 4.3 In view of the decisions cited above, the appellant submits that they are eligible for the refund and the rejection on the ground of limitation is not sustainable. 5. The Ld. Departmental Representative reiterated the findings in the impugned order. He submits that when the notification allowing the refund prescribes a specific time limit for applying the refund, it should be applicable. Since the refund claim was not filed within the time limit prescribed, he argued that the claim has been rightly rejected on the ground of time bar. 6. Heard both the parties and perus....
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....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 supplied for authorised operations of SEZ developers and units covered by Section 26 remains. Without such a legal authority, no tax or duty can be either levied or collected in view of Article 265 of the Constitution of India. 40. Therefore, there is no need for any exemption notifications under any of these three Acts nor is it necessary to fulfil any conditions of any of the conditions laid down in exemption notifications, if any, issued for the purpose. Thus, the charge of excise duty under Section 3 of the Central Excise Act, the charge of Customs Duty under Section 12 of the Customs Act and the charge of service tax under Sections 66, 66A and 66B of the Finance Act, 1994 will not apply to goods and services supplied to developers and units for authorized operations in the SEZ areas by virtue of the overriding provisions of the SEZ Act. Any exemption notifications and conditions therein are therefore, redundant because, the Parliament itself has, through Sec....
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....tisfied or not for grant of any exemption from service tax. Section 26(2) of the SEZ Act does provide that the Central Government may prescribe the manner in which, and the terms and conditions subject to which, the exemptions shall be granted to the Developer under sub-section (1) but what is important to notice, and as was also observed by the Andhra Pradesh High Court, the word "prescribe" would mean "prescribed by rules made by the Central Government under the SEZ Act," in view of the definition of "prescribed" under section 2(w) of the SEZ Act. The Notification dated March 3, 2009, which has been issued under Section 93 of the Finance Act, therefore, has no application." 7.4 In the view of Section 26(1) of the SEZ Act read with Rule 31 of the SEZ Rules, we observe that the conditions of Notification No. 09/2009-S.T. are clearly repugnant and inapplicable. This is because Section 51 of the SEZ Act grants overriding power to the provisions of the SEZ Act. We find that the Tribunal, New Delhi in the case of M/s Lupin Ltd. (supra) has held this view and the observations of the Tribunal are reproduced as under: - "21. From the aforesaid, it is evident that the appellant fulfill....