TaxTMI 
TaxTMI 
2025 (6) TMI 1963
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....pellant is in appeal before us. 3. The Learned Counsel submits that there is no dispute about the fact that all the taxable services in respect of which refund claims were filed by the appellant are used for authorized operations in a SEZ, hence, the question of rejecting the refund does not arise. It is further submitted that the issue is no longer res integra by following decisions: • Infosys Ltd Vs. CST, 2017 (10) TMI 504 - CESTAT Bangalore. • Intas Pharma Ltd. Vs. CST, 2013 (7) TMI-CESTAT Ahmedabad. • Zydus BSV Pharma Pvt. Ltd. Vs. CST, 2018 (8) TMI-CESTAT Ahmedabad. • Tata Consultancy Services Ltd Vs. CCE, 2013 (29) STR 393 (Tri.-Mum). • Sears IT & Management Services (I) Pvt. Ltd. Vs. CCE, 2018 (8) GSTL 425 (Tri-Mum). 4. The Authorized Representative reiterated the findings of the authorities to submit that as per the Notification No.15/2009 dated 20.05.2009, the Commissioner (Appeals) had rightly rejected the refund claim. We find that in appellant's own case as reported Infosys Ltd Vs. CST, 2017 (10) TMI 504 - CESTAT Bangalore, this Tribunal after considering the amended provisions of the Notifications a....
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....r or entrepreneur; (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; (f) exemption from the securities transaction tax leviable under section 98 of the Finance (No. 2) Act, 2004 in case the taxable securities transactions are entered into by a non-resident through the International Financial Services Centre; (g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers under the Central Sales Tax Act, 1956 if such goods are meant to carry on the authorised operations by the Developer or entrepreneur. Act to have overriding effect 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. 6.2 The Notification No.9/2009 dated 3.3.2009 gives the exemption to taxable services from the whole of the service tax leviable under Section 66 of Finance Act, 1994 to the taxable services provided to a develo....
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....Notification No.15/2009-ST dated 20.5.2009 amends the Notification No.9/2009. The relevant parts of this Notification are given herein below: Notification No. 15/2009-Service Tax dated 20-May-2009 Exemption to taxable services provided to a developer or unit of Special Economic Zone Notification No.9/2009-S.T., amended In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.9/2009-Service Tax, dated the 3rd March, 2009 which was published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 146(E), dated the 3rd March, 2009, namely:- In the said notification:- (A) in paragraph 1, in the proviso, the sub-paragraph (c), the following shall be substituted, namely:- "(c) the exemption claimed by the developer or units of Special Economic Zone shall be provided by way of refund of service tax paid on the specified services used in relation to the authorised operatio....
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.... "3.10 The two notifications, in conjunction, have given effect to the statutory promise by devising two methods for availing the exemption - by upfront exemption when the service is rendered within the geographical boundaries of the Special Economic Zone and by the refund route where the physical performance of service is not within the boundaries but is intended for the authorized operation of the developer or unit. A pre-approval and verification system was also established in the same notifications - necessitated by the potential for wrongful availment arising from the intangibility of services. 3.11 - 3.14 ............. 3.15 Later decisions of the Tribunal on dispute that arose, notwithstanding the notification of the elaborate procedures of 2009 and in the face of the rigid attitude of the refund sanctioning authorities, concerned as they were with the temptation to deny eligible exemptions, expounded on the intent of Section 26 of the Special Economic Zones Act, 2005 and the need for a harmonious construction of the relevant notifications of 2009 and, in doing so, accorded a primacy to the statutory provisions. Accordingly, in re Tata Consultancy Ser....
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....rne the incidence of taxation. 6.3 Services provided to a SEZ or unit in the SEZ is deemed as export as per the provisions of Section 2(m)(ii) of the SEZ Act, 2005 and as per Rule 31 of the SEZ Rules, 2006, the appellant is entitled for exemption from payment of service tax on the services which are used or provided to a unit in the SEZ. As per Section 51 of the said SEZ Act, the said provisions prevail over the provisions contained in any other law for the time being in force. It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized broader view of the provisions relating to refund has to be taken. Therefore, even if the appellant was not eligible for refund under Notification No. 9/2009-S.T., dated 3-3-2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944. In this view of the matter, rejection of service tax refund is not sustainable in law." 3.16 In re Intas Pharma Ltd., the very same principle was reiterated while deciding on the refund withheld by lower authorities because of a view ....
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....f Notifications 9/2009 and 15/2009 issued under section 93(1) of the Act, considered in the light of overarching provisions of Sections 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Notification 9/2009 nor 15/2009 disentitle immunity to service tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalized. Notification Nos. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of service tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to service tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the service tax, wherever as....