TaxTMI 
TaxTMI 
2024 (11) TMI 405
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....SEZ Rules, 2006 does not extent the benefit to the subcontractor for the SEZ unit. The appellant have received payment from main contractor and not from SEZ unit. He submits that all these allegations are not relevant for a service provider in the capacity of the subcontractor. The only requirement is that the service should be provided in the SEZ which is undisputed. The services have been approved qua the main contractor which is sufficient requirement for granting exemption. He placed reliance on the following judgments:- Messrs Dix Fine Chemicals Pvt Ltd vide final order No. A/12278-12279/2022 dated 23.10.2022 CESTAT-Ahmedabad Intas Pharma Ltd- 2013 (32) STR 543 (Tri-Ahmedabad) Intas Pharmaceuticals Ltd- 2022 (64) GSTL 216 (Tri.-Ahmd.) Reliance Ports and Terminals Ltd- 2015 (40) STR 200 (Tri-Ahmd.) Sudhir Chand Jain- 2018 (8) GSTL 302 (Tri.-All.) CST Vs. Fedco Paints and Contracts -2017 (3) GSTL 364 (Tri.-Mumbai.) SRF Ltd- 2022(64) GSTL 489 (Tri.-Del.) Wabco India Ltd- 2021 (54) GSTL 37 (Tri.- Chennai) Torrent Energy Limited Vs. State of Gujarat [SCA No. 14856 of 2010 and SCA 711 of 2014] L&T Vs. State of Andhra Pradesh- 2006 (148) STC 616 (AP) State of An....
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.... 13. It is also the contention of the Revenue that the services provided by sub-contractor are not approved. In this regard we find that it is not the service provider specific if the services are approved in relation to the main contractor, there should not be any need of separate approval of list of services with the sub-contractor. Moreover, in the judgments cited by the appellant, it was also held that the approved list of services is only a procedural requirement which should not come in the way of granting substantial benefit of notification. It is also submission of the appellant that there are judgments on the issue that in the SEZ Act the exemption from duty and service tax is provided which prevails over the other Acts therefore, in this position, only on the basis of the subordinate legislation and procedural lapse thereof, the exemption provided in the parent Act i.e. SEZ Act, cannot be denied. All these aspects need to be reconsidered by the Adjudicating Authority. 14. Accordingly, we set-aside the impugned order and allow the appeal by way of remand to the Adjudicating Authority to pass a fresh order considering our above observations and also the judgments on all t....
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....view of the legislated exemption supra and since provisions of the 2005 Act are provided an overriding effect vide Section 51; and absent any provision in the Act which eclipses the overarching trajectory of the 2005 Act, the immunity to Service Tax in respect of taxable services provided in relation to SEZ is a legislatively enjoined immunity. Therefore, any Service Tax paid/remitted by a service provider is liable to be refunded to the provider who has remitted Service Tax in relation to taxable services provided to a developer or unit, to carry on authorized operations in a SEZ. 9. However, the issue in this case is refund claimed by the petitioner as the recipient of the taxable service of Architect, Interior Decorator and Consulting Engineer, i.e. in respect of those services provided to the appellant by M/s. Venkataramanan Associates. Notification No. 9/2009-S.T., dated 3-3-2009 as earlier adverted to, enables claim of exemption by developers or units in SEZ by way of refund of Service Tax paid for services used in relation to authorized operations in SEZ, insofar as the claim for refund is filed within six months or within such extended period as the Assistant Commissioner....
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....ulting Engineer services provided by M/s. Venkataramanan Associates, is unsustainable and is so declared. The order impugned herein namely the Order-in-Appeal dated 29-10-2012 is set aside. Appellant shall be entitled to refund of Rs. 56,650/-. 13. Appeal is allowed accordingly. No costs." b) In the case of Reliance Ports and Terminals Ltd. (Supra) this Tribunal has passed the following order:- "5. Heard both sides in detail and perused the records. The issue involved in this case is whether service provider is entitled to exemption from payment of Service Tax during the period from 3-3-2005 to 20-5-2005 when such services were provided inside SEZ. Under Notification No. 15/2009-S.T., dated 20-5-2009, exemption from payment of service to the service providers was made available by a suitable amendment in proviso (c) of para 1 of Notification No. 9/2009-S.T., dated 3-3-2009 for the services provided inside SEZ. Before this amendment also, exemption was available to the service recipient by way of refund by the service recipient subject to certain conditions. In this regard, appellant has relied upon the judgment of Tata Consultancy Services Ltd. v. CCE & ST (LTU), Mumbai (supra....
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....' of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the providers of such services." It is also relevant to quote the provisions contained in Sec. 26(1)(e) and Sec. 51 of the SEZ Act, 2005 as reproduced below : "26(l)(e) : exemption from Service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer or Unit to carry on the authorized operations in Special Economic Zone. 51. 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." 7. From the provisions contained in Section 26(1)(e) of the SEZ Act, read with Rule 30(10) of the SEZ Rules, 2006, it can be seen that no Service Tax is payable on the services provided by a service provider to a SEZ unit. Further, Sec. 51 of the SEZ Act also makes an over-riding provision that SEZ Act shall have effect even if there is anything inconsistent therewith contained in ....
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.... (i) the developer has been approved by the Board of Approvals to develop, operate and maintain the Special Economic Zone; (ii) the unit of the Special Economic Zone has been approved by the Development Commissioner or Board of Approvals, as the case may be, to establish the unit in the Special Economic Zone; (iii) the developer or unit of a Special Economic Zone shall maintain proper account of receipt and utilisation of the said taxable services. Explanation. - For the purposes of this notification, - (1) "Board of Approvals" means the combined Board of Approvals for export oriented unit and Special Economic Zone units, as notified in the Official Gazette, from time to time by the Government of India in the Ministry of Commerce and Industry; (2) "developer" means a person engaged in development or operation or maintenance of Special Economic Zone, and also includes any person authorised for such purpose by any such developer; (3) "Special Economic Zone" means a zone specified as Special Economic Zone by the Central Government in the notification issued under clause (iii) of Explanation 2 to the proviso to sub-section (1) of section 3 of the Central Excise Act, 1944 ....