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2018 (10) TMI 1375 - AT - Service TaxRefund of service tax paid subject to the condition that no credit has been availed - benefit of Notification No. 17/2011-ST dated 1.3.2011 as also a subsequent identical Notification No.40/2012-ST dated 20.6.2012 - Revenue entertained a view that they have availed the cenvat credit of service tax so paid by them and as such, the condition of the notification stands violated by them - what exactly is the meaning of the expression “taken” appearing in sub-clause (g) of Explanation (2) appended to the notification in question? Held that:- The notification debars taking of cenvat credit of service tax paid on the specified services used for the operations in SEZ unit. A mere maintenance of an account showing the total quantum of service tax paid by the assessee cannot be held to be availment of cenvat credit. The mere entries in such records which are not even prescribed statutory records, cannot lead to the inevitable conclusion that the assessee has taken the credit. Similarly, the reflection of such account in the ST-3 returns so as to let the department know about the total service tax quantum earned by the assessee will also not amount to the fact that as if the assessee has taken and utilized the credit. Not only that the appellant in their subsequent ST-3 returns has again shown the opening balance of such account maintained by them as zero and has reflected the total service tax earned by them in that period. The appreciation of all the above facts leads to only one inevitable conclusion that no cenvat credit was availed by the assessee and as such, there was no violation of the condition of the notification. The lower authorities in their impugned orders have nowhere disputed the fact that such amount of service tax reflected by them in their ST-3 returns was utilized by them. The condition of the notification, which grants refund of service tax paid on various services utilized for authorized operations on SEZ, is that no cenvat credit would be availed by the assessee. Such availment cannot be held to be there unless such service tax accumulated in the accounts of the assessee stands utilized by them. Appeal allowed - decided in favor of appellant.
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