TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 2092
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....d Claimed Refund Rejected (1) (2) (3) (4) (5) (6) (7) (8) (9) 1 ST/41456/2015 M/s. Hexaware Technologies Limited The Commissioner of GST and Service Tax 65/2011(R) dt. 28.02.2011 96- 101/2015 (STA-I) dt. 30.03.2015 Oct'09 to Dec'09 66,47,964/- 52,81,564/- 2 ST/41457/2015 87/2011(R) dt. 31.03.2011 Apr'09 to Sep'09 2,29,343/- 2,29,343/- 3 ST/41458/2015 153/2011(R) dt. 04.07.2011 Jun'10 to Sep'10 51,47,580/- 1,85,464/- 4 ST/41459/2015 152/2011(R) dt. Apr'10 to Jun'10 16,54,506/- 1,45,763/- 04.07.2011 5 ST/41461/2015 151/2011(R) dt. 26.06.2011 Jan'10 to Mar'10 79,38,629/- 5,92,253/- 6 ST/41462/2015 181/2011(R) dt. 13.09.2011 Oct'10 to Dec'10 68,39,525/- 2,37,848/- As the issue for determination is common in all these appeals i.e., rejection of part of refunds filed for the period from October 2009 to December 2010, these are taken up togethe....
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....ng the refund of service tax paid on approved services and used for authorized operations in an SEZ. For ease of reference, the Notification No. 09/2009-ST dated 03.03.2009 referred above is extracted below: - "NOTIFICATION NO. 09/2009-SERVICE TAX, Dated: March 3, 2009 Superceded vide Notification no. 17/2011 ST dated 1.3.2011 Exemption to Services Provided in relation to authorized operations in a Special Economic Zone (SEZ) and received by a developer or units of a sez G.S.R. 146(E). - In exercise of the powers conferred by sub- section (1) of section 93 of the Finance Act, 1994 (32 of 1994), and in supersession of the notification of the Government of India, Ministry of Finance (Department of Revenue), No. 4/2004- ServiceTax, dated the 31st March, 2004, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated the 31st March, 2004, vide, G.S.R. 248(E), dated the 31st March, 2004, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services specified in clause (105) of section 65 ....
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....the developer or units of Special Economic Zone and used in relation to the authorised operations in the Special Economic Zone, and such person shall not be eligible to claim exemption for the specified services: Provided that where the developer or units of Special Economic Zone and the person liable to pay service tax under sub-section (2) of section 68 for the said services are the same person, then in such cases exemption for the specified services shall be claimed by that person; (b) the developer or units of Special Economic Zone shall claim the exemption by filing a claim for refund of service tax paid on specified services; (c) the developer or units of Special Economic Zone shall file the claim for refund to the jurisdictional Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be; (d) the developer or units of Special Economic Zone who is not registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, or the said Finance Act or the rules made thereunder, shall, prior to filing a claim for refund of service tax under this notification, file a de....
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....ules made thereunder, shall apply, so far as may be, in relation to refund of service tax under this notification as they apply in relation to a Special Economic Zone." 2.3 Thus these six refund claims have been filed by the Appellant in terms of the above Notification which exempts taxable services provided in relation to authorized operations in an SEZ by way of refund to the developer or the unit in the SEZ. The Notification interalia provides the developer / the units of SEZ shall get the list of services specified in clause 105 of Section 65 of the Finance Act, 1994 as are required for authorized operations in the SEZ and use the specified services in relation to the authorized operations in the SEZ to be approved by the Approval Committee. The refund is subject to the condition interalia that the claim should be filed within 6 months from the date of actual payment of service tax by the unit or the developer to the service provider. Further, the exemption is applicable only in respect of service tax paid of the specified services on or after the date of publication of Notification which is 03.03.2009. 3.1 The Ld. Advocate Mr. H. Kumar has appeared for the Appellant and ....
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....perator 12-04-2010 Filed after 6 months Disallowed. Not for authorised operation I, II & IV 11 06-10-2009 6,37,853 19,136 6,56,989 IT/ITES 06-04-2010 Filed after 6 months IV 12 06-10-2009 2,156 65 2,221 IT/ITES 06-04-2010 Filed after 6 months IV 13 06-10-2009 81,435 2,443 83,878 IT/ITES 06-04-2010 Filed after 6 months IV 14 06-10-2009 9,80,431 29,413 10,09,844 IT/ITES 06-04-2010 Filed after 6 months IV 15 06-10-2009 1,11,794 3,354 1,15,148 IT/ITES 06-04-2010 Filed after 6 months IV 16 06-10-2009 8,35,692 25,071 8,60,763 IT/ITES 06-04-2010 Filed after 6 months IV 17 06-10-2009 7,901 237 8,138 IT/ITES 06-04-2010 Filed after 6 months IV 18 06-10-2009 6,66,786 20,004 6,86,....
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.... 07-05-2010 Filed after 6 months Disallowed. Not for authorised operation & III 34 16-11-2009 200 6 206 Tour operator 17-05-2010 Filed in time Disallowed. Not for authorised operation = 35 16-11-2009 1,493 45 1,538 Tour operator 17-05-2010 Filed in time Disallowed. Not for authorised operation II 36 16-11-2009 8,120 244 8,364 Tour operator 17-05-2010 Filed in time Disallowed. Not for authorised operation II 37 16-11-2009 500 15 515 Tour operator 17-05-2010 Filed in time Disallowed. Not for authorised operation II 38 18-11-2009 11,600 348 11,948 Tour operator 19-05-2010 Filed in time Disallowed. Not for authorised operation II 39 25-11-2009 13,800 414 14,214 Commercial training 26-05-2010 Filed in time Eligible 40 26-10-2009 1,000 30 1,030 Commercial training 2....
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....ion No. 09/2009-ST dated 03.03.2009 where the only requirement is that the services for which refund is claimed should be included in the list of specified services approved by the Developer Commissioner and are to be used for the authorized operations. The Original Authority and as well as the Appellate Authority have erred in rejecting their refunds on the ground that, the services are not used for the authorized operations or having not been qualified as input services under CENVAT Credit Rules, 2004 relying on the decisions in the case of Vision Pro Event Management Vs. Commissioner of Central Excise & Service Tax, Chennai [2019 (365) ELT 555], wherein the Tribunal, Chennai Bench held that once the input services are approved by the Development Commissioner, the Department cannot contend that the said input services are not eligible for refund or these are not consumed within SEZ and also in the case of Symantec Software and Services India Pvt. Ltd. Vs. Commissioner of GST & CE, Chennai South [Service Tax Appeal no. 40050 of 2019], wherein the Tribunal, Chennai Bench held that once the input services are approved by the approval committee as services for authorized operations, ....
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.... intention of the exemption provided is to effectuate the larger objective of the SEZ Act, 2000, specifically, Sections 51 and 26 thereof which grants exemption to all the services that are used by the SEZ Unit. SEZ Act, 2000 has an over-riding effect over the other Acts including the Finance Act, 1994. Therefore, in a situation where the notification itself grants discretion to the officer to condone the delay, which is procedural in nature, denial to exercise such discretion is arbitrary and prayed to set aside. He has further informed that in the Appellant's own case for the period January 2010 March 2010, the refund processing authority vide Order-in-Original dated 29.06.2011 had exercised its discretion and condoned the delay in filing of the refund application for the said period. 4.1 The Ld. Authorized Representative Mr. M. Selvakumar representing the Revenue has argued that the Appellant is not eligible for filing the refund claims of service tax paid on those invoices which were dated earlier to the issuance of the Notification No. 09/2009-ST dated 03.03.2009. He has drawn our attention to the findings of the Original Adjudicating Authority that tour operator servic....
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....fter going through all the invoices furnished by the Appellant have sanctioned part of the refund claims while rejecting other part for various reasons which are categorized as given below: - i. Invoices for which service tax has been paid to the provider before 03.03.2009. ii. Invoices relating to Tour Operators/Outdoor Catering. iii. Invoices categorized as 'Outdoor Catering', but which may not fall under that service and iv. Invoices for which payments have been made more than six months before filing the refund claim. 8. The details of the invoices along with date and type of invoices and the amount of service tax involved etc., are given in the Annexure to the Show Cause Notice as tabulated in paragraph 3.1 supra. To avail the benefit of exemption of the above Notification, the Appellant is required to pay service tax on the services utilized in connection with the authorized operation and also the services should be approved by the Approval Committee for their use for authorized operations in SEZ. 9. The said Notification providing for a refund of service tax paid on input services has come into effect from 03.03.2009. As such....
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....cient nexus between the services and authorized operations as detailed in para 3.1.2 as below: - "3.1.2 Therefore, the phrase, "used in" mentioned in Notification No. 5/2006-CX (NT) to show the nexus also needs to be interpreted in a harmonious manner. The following test can be used to see whether sufficient nexus exists. In case the absence of such input/input service adversely impacts the quality and efficiency of the provision of service exported, it should be considered as eligible input or input service. In the case of BPOs/call centres, the services directly relatable to their export business are renting of premises; right to use software; maintenance and repair of equipment; telecommunication facilities; etc. Further, in the instant example, services like outdoor catering or rent-a-cab for pick-up and dropping of its employees to office would also be eligible for credit on account of the fact that these offices run on 24x7 basis and transportation and provision of food to the employees are necessary pre-requisites which the employer has to provide to its employees to ensure that output service is provided efficiently. Similarly, since BPOs/call centres require a lar....
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....ms filed have been rejected as the same are not filed within 6 months from the date of payment of service tax as per the condition mentioned at 2(f) of the Notification ibid. The condition mentioned at 2(f) of the Notification No. 09/2009- ST dated 03.03.2009 is extracted below: - "2. ... (f) the claim for refund shall be filed, within six months or such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall permit, from the date of actual payment of service tax by such developer or unit to service provider;" A perusal of the above condition indicates that when there is a delay in filing the refund claim, the Assistant Commissioner or the Deputy Commissioner of Central Excise have been endowed with authority to allow extension of time for filing the claims. 14. We find in these appeals, the Ld. Advocate has advanced the reason that the delay is caused by the Consultant in filing the claims. In the case of Vedanta Aluminium Limited Vs. Commissioner of Central Excise and Service Tax, Bhubaneswar [2024 (3) TMI 1325-CESTAT KOLKATA], the Tribunal Kolkata has held as follows: - ....
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....se. 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 Section 51 of the SEZ Act, overridden the charge in the other laws. . . . 48. Thus, as the charge of service tax under the Finance Act, 1994 on the services provided for authorised operations of the appellant are overridden by section 51 of the SEZ Act, 2005, any exemption notifications for such services as well as the conditions laid down in them are redundant. Service tax, if any, paid on such input services for authorised operations need to be refunded to the appellant. We also find no force in the other grounds raised for denying the refund of service tax paid and discussed above. 49. The denial of refund of service tax to the ....
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....ued 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 fulfilled the criterias of eligibility to claim refund of the service tax paid on input services in terms of the Notification No 12/2013-ST. Infact it is not the case of the revenue that the appellant is not eligible to make such claims. Their only objection is to the claim being filed beyond the period of one year as per the notification. We are of the considered opinion that once the appellant is found to be eligible to claim the refund, the substantive conditions are complied with and the condition of time limit for making the claim under the notification being only a procedural requirement, ne....
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....one year and the appellant has filed the refund claim within this period of one year. Accordingly, the refund claim can be considered to be filed within the prescribed time-limit. We find that a similar view has been taken by the Tribunal in the case of M/s. Tata Consultancy Services Ltd. (supra)." 15. Further, in the case of Congnizant Technology Solutions India Pvt. Ltd. Vs. Commissioner of Central Excise & Service Tax, Chennai [2021 (10) TMI 642-CESTAT CHENNAI], the Tribunal held as follows: - "It is not disputed that all claims had been filed on or before the last date for filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents - It can be seen from the Deficiency Memo that the refund claim is returned to the appellant. There is no decision on merits; there is no application of mind or a speaking order rejecting the claim. In the present case, the appellant has filed the refund claims originally within a period of one year and therefore, the date on which the claims were re-submitted along with documents cannot be considered to be the date of filing claim so as to deny the refund on ....