2016 (6) TMI 683 - AT - Service Tax

Refund claim - Information Technology Software Services and Commercial Coaching and Training Centre Service - Service tax paid on specified services like Telecommunication service Management or Business consultant service Business Auxiliary service Air travel agent service cleaning service and Commercial training and coaching service used for authorised operations in SEZ Zone in terms of Notification No.17/2011-ST dated 01-03-2011 - Appellant was not required to pay service tax on subject services. Held that - there is no dispute that the subject services are duly included in the approved list of services and also that they are utilised for the authorised operations of the SEZ unit of the Appellant. The reason for rejection is that as per the notification No.17/2011 dated 01-03-2011 the services are eligible for exemption. That when the appellant need not pay the service tax they are not eligible for refund. The plain language of the notification makes it clear that there is no bar from an assessee from paying tax and then claiming refund as the services are exempted. The exemption from payment of service tax on wholly consumed services is only optional. Therefore by following the judgments laid in Zydus BSV Pharma (P)Ltd Vs CST Ahmadabad 2013 (6) TMI 106 - CESTAT AHMEDABAD and Credit Suisse Service India Pvt.Ltd Vs CCE Pune III 2015 (2) TMI 474 - CESTAT MUMBAI I hold that appellant is eligible for refund of Rs. 1, 59, 483/-. - Decided in favour of appellant with consequential reliefs.

Summary

Issues:
1. Rejection of refund claim for service tax paid on specified services used in SEZ Zone.
2. Eligibility of the appellant for refund under Notification No.17/2011-ST dated 01-03-2011.

Issue 1: Rejection of Refund Claim
The appellant, registered for taxable services, filed a refund application for service tax paid on specified services used in SEZ Zone. The original authority sanctioned a partial refund but disallowed a significant amount. The rejection was based on the ground that the appellant need not pay service tax on certain services as per the notification. The Commissioner (Appeals) partly upheld the decision and directed a review. The appellant, aggrieved by the rejection, filed the present appeal.

Issue 2: Eligibility for Refund under Notification No.17/2011-ST
The main issue was whether the appellant is eligible for a refund of service tax paid on services wholly consumed within SEZ under Notification No.17/2011-ST. The Order-in-Original noted that the appellant utilized the specified services in authorized operations but denied the refund on the basis that the appellant need not pay service tax on these services as per the notification.

The Tribunal referred to precedents like Zydus BSV Pharma (P) Ltd vs. CST, Ahmedabad and Credit Suisse Service India Pvt. Ltd vs. CCE, Pune III to analyze the situation. It was observed that for services wholly consumed within SEZ, there is no requirement to discharge service tax liability initially. However, this does not preclude the eligibility for a refund if the appellant meets the criteria under relevant provisions. The Tribunal emphasized that if the appellant is entitled to a refund under Section 11B, it cannot be denied based on the claim being made under a specific notification.

In line with the judgments cited, the Tribunal held that the appellant is eligible for a refund of the disputed amount. The rejection was based on the misconception that since the services were exempted under the notification, the appellant was not entitled to a refund. The Tribunal clarified that the exemption from paying service tax on wholly consumed services is optional, and there is no bar on an assessee from claiming a refund even if the services are exempted. Consequently, the impugned order was set aside, and the appeal was allowed with appropriate reliefs.

This comprehensive analysis of the judgment highlights the issues involved, the legal interpretations applied, and the ultimate decision rendered by the Tribunal in favor of the appellant.