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2024 (1) TMI 455 - CESTAT AHMEDABADRefund of Service Tax paid - rejection on the ground that conditions of N/N. 09/2009 as amended by N/N.17/2011-ST dated 01.03.2011 were not complied - whether against the mandate of having invoice in original as per the notification a photocopy backed by C.A certificate can be accepted? - whether retrospective effect can be given to specified operation having been approved by Board Of Approval/Unit Approval Committee which were not available at the time even when the refund was applied? Non production of invoice and alternate course available to the appellant - HELD THAT:- This Court finds support from the decision of Commissioner of Central Excise and Customs Vadodara-II vs. Steel co Gujarat Ltd. reported in 2010 (255) ELT 518 (Guj.) wherein, the Hon’ble High Court of Gujarat approved the course of action, whereby in the absence of original invoice, photocopy duly verified by the Range Superintendent was directed to be accepted. This Court decides accordingly and directs that the photocopy of invoice can be taken as evidence of underlying transaction, if the same is got verified by the department/appellant party in the matter. On this issue, the matter is accordingly remitted. Retrospective application of approval of certain operations when granted by the executive authorities under SEZ Act - Administrative discretion of authorities - HELD THAT:- This Court finds that any given approval of specified or applied operations to a Developer or unit is prerogative of the executive authority under SEZ only. This Court, therefore, in the absence of any such decision of the executive authority of the SEZ Act having been brought on record, is not inclined to exercise discretion not particularly vested in this Court. Matter is therefore remitted back to the original authority, on this issue too with direction to seek clarification on this aspect from the office of Development Commissioner, take it on record and then decide the matter. Appellant shall also be free to take such clarification from the office to Development Commissioner, if so desired by them. Appeal disposed off by way of remand.
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