TaxTMI 
TaxTMI 
2025 (7) TMI 1641
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....ey avail cenvat credit on various input services 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 cas....
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....ance Act, which are provided in relation to the authorised operations 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] ....
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.... Further, various decisions of the Tribunal gives support to the admissibility of the refund claims filed by the appellant. These decisions also make reference to the relevant provisions 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 t....
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....appellant is eligible for refund under Section 11B, then the same cannot be denied on the ground that the claim was made under Notification No. 9/2009-S.T. In this case, there is no dispute that the services were provided in relation 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, e....
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....lant has further relied upon the judgment of Intas Pharma Ltd. v. CST, Ahmedabad (supra) holding that in view of the provisions of Sections 7, 26 and 51 of 2005 Act [SEZ Act, 2005], exemption to services provided to a SEZ were always (available and Notifications No. 9/2009-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 se....
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....g to delay in devising a facilitative mechanism that was agreeable to Revenue. Disregard of parliamentary intent to levy a tax or exempt a tax cannot be brooked under any circumstance. A harmonious construction of the exemption Notification 4/2004-S.T., dated 31st March, 2004 that preceded the Special Economic Zones Act, 2005 with that Act must perforce be the facilitative mechanism in the absence of any other. A misconceived notion, as entertained by the lower authorities about that distinction between the corporate office address and the site address, should not be allowed to hold sway when confronted with the factual matrix of its exclusive existence in a Special Economic Zone; consequently, there can be no doubt that the services provided by M/s. NSDL was for the authorized operations in a Special Economic Zone. 3.19 For the above reasons, the appeal is allowed and the appellant is entitled to refund of service tax as claimed by them." 7. Considering the provisions of law mentioned earlier and the Tribunal's decision in the case of Reliance Industries Ltd. (supra), the impugned order is set aside and the appeals are allowed with consequential relief to the app....