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2015 (3) TMI 138 - HC - Service TaxDenial of refund claim u/s 11B - SEZ - assessee claimed refund of service tax paid thereon under Notification No.9/2009-ST dated 3rd March, 2009, as amended by Notification No.15/2009-ST dated 20th May, 2009 - Department was of the view that the services consumed within the SEZ are exempt from tax. Hence, no refund can be claimed on such exempt input services under the Notifications - Maintainability of appeal - Held that:- As per Rule 31 of the Special Economic Zone Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided for a unit in the SEZ. The Tribunal referred to section 51 of the SEZ Act, 2005 and held that these provisions prevail over the provisions contained in any other law for the time being in force. It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized, broader view of the provisions relating to refund has to be taken. Therefore, even if the appellants were not eligible for refund under Notification No.9/2009-ST, the appellants were clearly eligible for refund under section 11B of the Central Excise Act, 1944. Therefore, the rejection of service tax refund is not sustainable in law. Clause (c) of explanation to section 35E(5) reveals as to how it covers a case of the goods being excisable at all or whether the rate of duty of excise on any goods is nil. This clause is an aid or guide with the assistance of which we can decide as to whether any question has a relation to the rate of duty of excise as appearing in section 35-G(1) of the Central Excise Act, 1944. - Preliminary objections are upheld - Appeal are not maintainable - Decided against Revenue.
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