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2013 (2) TMI 562 - CESTAT AHMEDABADRefund of service tax paid on services used in SEZ - denial of refund on Event Management, CHA Services, Management Consultancy, Commercial Training & Coaching Services, Testing, Management and Business Consultancy Service by overseas service provider, Maintenance & Repair Service as they were not in the approved list of services - Held that:- The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorized operations and the jurisdictional Commissioner of Central Excise is also a member of this Approval Committee. Once the Approval Committee has given the nexus and the justification, it was totally unwarranted on the part of the adjudicating authority and the appellate authority to go into this question and come lo their own findings in the matter. Therefore, rejection by the lower authorities of the refund claims of the service tax paid on various services on this grounds is bad in law and is accordingly set aside. Whether the appellants can be granted refund under Notification No.09/2009-ST dated 3.3.2009 as amended by Notification No.15/2009-ST dated 20.5.2009 - Held that:- Notification No.09/2009-ST exempts the taxable services specified in Clause (105) of Section 65 of the Finance Act, 1994 provided in relation to the authorized operations in a SEZ and received by a developer or units of a SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable thereon under Section 66 of the Finance Act, 1994. The refund procedure for operationalising the exemption applies to services which are procured from outside in respect of which the service tax liability has to be discharged first and the refund claim subsequently. In the case of services which are wholly consumed within the SEZ, there is no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitled for refund of the service tax paid under the provisions of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. If the 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.09/2009-ST. As in the present case there is no dispute that the services were provided in relation to the authorized operations of the appellant within the SEZ & the appellant has filed the refund claim within the tine period provided for in Section 11B and the appellant has borne the incidence of taxation. 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 appellants are entitled for exemption from payment of service tax on the services which are used or provided to a unit in the SEZ. Therefore, even if the appellant was not eligible for refund under Notification No.09/2009-ST dated 3.3.2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944 - rejection of service tax refund is not sustainable in law - in favour of assessee.
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