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2019 (6) TMI 517 - CESTAT KOLKATARefund claim - services availed by the SEZ Unit - time limitation - whether the refund claims are to be filed within one year from the date of payment or from the end of the quarter, for which payments were received? - period July, 2014 to September, 2014. HELD THAT:- The refund application relates to the period July, 2014 to September, 2014. The refund application was filed by the Appellant on 30.09.2015. The Ld. Counsel of the Appellant had relied on Para 3(III)(e) of the Notification No. 12/2013-ST dated 01.07.2013, which provides that a refund application shall be filed within one year from the end of the month in which actual payment of service tax was made by a SEZ unit to the registered service provide. Moreover, sub clause(f) of the Para 3(III) of the impugned provides that a SEZ unit is required to submit only one claim of refund for every quarter. In the light of overlapping in the impugned Notification, I am of the view that the adjudicating authority has not considered such technical and practical aspects, nor is there a finding in this regard. Accordingly, as the refund application has been filed within the end of the quarter from one year, such delay should be condoned and consequential refund allowed. Refund claim - common input services - HELD THAT:- Services which are common in nature not exclusively used for authorized operation have to be dealt in a manner prescribed. Clause (a) of Paragraph III of the said Notification provides that the service tax paid on specified services that are common to the authorized operation in an SEZ and the operation is domestic Tariff Area (DTA units) shall be distributed amongst the SEZ unit and DTA units in the manner as prescribed in Rule 7 of Cenvat Credit Rules. Moreover, it further provides that for the purpose of distribution, the turnover of the SEZ unit shall be taken as the turnover of authorized operation during the relevant period - In the instant case, it is the argument of the Appellant’s Counsel that they do not have any DTA units, however, they do have DTA operations wherein they are providing erection and commissioning service. Moreover, DTA sale undertaken by them forms part of authorized operation, in terms of provisions of SEZ Act. The turnover of DTA sale shall be considered as part of authorized operation and forms an integral part of turnover of SEZ unit for the purpose of calculating proportionate refund of service tax used for the authorized operation. Thus, the lower authority has wrongly considered DTA sale from SEZ unit as part of DTA operation for the purpose of calculating proportionate service tax refund on common input services. Appeal allowed - decided in favor of appellant.
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