AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1641
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....ices and utilize the same in relation to authorized operations within the Special Economic Zone (SEZ). They filed refund claims in terms of Notification No. 09/2009 dated 03.03.2009 read with amended Notification No. 15/2009 dated 20.05.2009 which was rejected on the ground that the services were wholly consumed within the Special Economic Zone (SEZ). The third refund claim was rejected on the ground that there is no evidence on record to establish the fact that the services were approved by the approval committee. Aggrieved by these orders, the appellant is in appeal before us. 3. The Learned Counsel for the appellant submitted that the refund claims related to the period from October 2009 to December 2009 in Appeal No. ST/28358/2013, which was rejected on the ground that the taxable services were not approved by the SEZ Authority. The Appellant placed on record letter dated 22.09.2010, wherein it was stated that they can avail service tax benefit as per the default list of services and the list is also placed on record, hence submits that refund claims cannot be rejected. Relies on the decision of the Hon'ble Supreme Court in the case of Commissioner of Cus. (Imports), Mumbai Vs....
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....in a Special Economic Zone, and received by a developer or units of a Special Economic Zone, whether or not the said taxable services are provided inside the Special Economic Zone, from the whole of the service tax leviable thereon under section 66 of the said Finance Act : Provided that - (a) the developer or units of Special Economic Zone shall get the list of services specified in clause (105) of section 65 of the said Finance Act as are required in relation to the authorised operations in the Special Economic Zone, approved from the Approval Committee (hereinafter referred to as the specified services); (b) the developer or units of Special Economic Zone claiming the exemption actually uses the specified services in relation to the authorised operations in the Special Economic Zone; (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 operations in the Special Economic Zone; [Notification No. 15/2009-S.T., dated 20-5-2009] In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994),....
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....ns of law, consequent to which the appellant is entitled to the subject refund claims. The tribunal in the case of Reliance Industries Ltd. vs. CCE, Mumbai: 2016 (41) STR 465 (Tri.-Mumbai) has inter alia observed as under: "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 ... 3.12 ... 3.13 ... 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 ....
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.... to the authorized operations of the appellant within the SEZ. From the records it is seen that the appellant has filed the refund claim within the time period provided for in Section 11B and the appellant has borne 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 ....
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..../2009-S.T. and No. 15/2009-S.T. have only operationalized the exemption provided. Para 11 of the above judgment is reproduced below : "11. On true and fair construction of 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 ....