TMI Blog2019 (8) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... March 2015, Deputy Commissioner, Mangalore has allowed the refund claim on identical facts and the same has not been challenged by the Revenue and has attained finality. The appellant does not have any DTA unit, they are only making supply to a DTA unit whereas the conditions of Para 3(III)(a) would be applicable only when the assessee has units in both SEZ and DTA whereas in the present case, the appellant has unit only in SEZ and make supply from SEZ to DTA unit and therefore the said condition of Para 3(III)(a) is not applicable in the present case - the denial of refund to the appellant is not sustainable in law. Rejection of refund on the ground of default list of services - HELD THAT:- This issue is squarely covered in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax paid towards specified services received by them for authorized operations in the SEZ as per Notification No. 12/2013-ST dated 01.7.2013. On verification of the claim, it was observed that: i) MSEZ has declared in the claim that the refund of Service Tax claimed is used exclusively for authorized operations in SEZ, but, actually has been used in common between SEZ and DTA. Further, the claim is not made in proportion to value of authorized operations to total turnover and also value of operation in DTA is not furnished. Amount involved is ₹ 4,82,207/- as per Para 3(III)(a) of Notification No. 12/2013-ST dated 01.7.2013. ii) In respect of Service Tax paid ₹ 2,23,875/- and ₹ 9,450/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are involved in the present case: i) Eligibility of refund on input service of ₹ 4,54,088/- alleged to be common service for both SEZ and DTA unit (Mere supply to DTA). ii) Eligibility of refund of ₹ 2,33,325/- received prior to default list of service. iii) Eligibility of refund of ₹ 8,008/- with respect to rent-a-cab service. iv) Eligibility of refund of ₹ 3,237/- with respect to accommodation service. 4.1. He further submitted that as far as issue number one relating to eligibility of refund of ₹ 4,54,088/- is rejected by stating that the input services are commonly used for both SEZ and DTA operations, both the authorities have wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the units in both SEZ and DTA whereas in the present case, the appellant has unit only in SEZ and makes supply from SEZ to DTA unit that is clearly recorded in the impugned order. He further submitted that the supply of water is an authorized operation and the supply of water in the DTA need not be mentioned explicitly. In support of his submission, he relied upon the decision in the case of Adani Powers Ltd. Vs Commissioner reported in 2016 (44) STR 146 (Tri. Ahmd). 4.2. With regard to second issue regarding eligibility of refund of ₹ 2,33,325/- received prior to the default list of service, Learned Consultant submitted that this issue is no more res integra and has been settled in appellants own case by this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conditions contained in the said Notification and the said Notification has to be interpreted strictly. He further submitted that as per the said Notification, the appellants are not liable to the refund part of which is time barred. 6. After considering the submission of both the parties and perusal of the material on record, I find that in the present case refund for the quarter July 2016 to September 2016 amounting to ₹ 4,54,088/- has been rejected on the ground that the input services are commonly used for both SEZ and DTA operations. Further, I find that the appellant has submitted that in their own case for the period January to March 2015, Deputy Commissioner, Mangalore has allowed the refund claim on identica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the said services are commonly used for SEZ and DTA operations whereas in view of my finding of issue no. 1 wherein I have held that the appellant does not have DTA, they have only made supply to a DTA unit and therefore there is no violation of the conditions of the Notification and therefore I hold that the rejection of refund claim on these two services is wrong and not sustainable in law. 7. In view of my discussion above, I am of the considered view that the impugned order in its entirety is not sustainable in law and therefore, I set aside the same by allowing the appeal of the appellant with consequential relief, if any. (Order was pronounced in Open Court on 08/08/2019) - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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