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2023 (8) TMI 541 - AT - Service TaxShort payment of service tax - availed exemption from the gross amount received towards the services rendered by them to the units located inside the SEZ, exemption provided by N/N. 4/2004-ST dated 31.3.2004 - the notification was superseded by Notification No. 9/2009-ST dated 3.3.2009 - recovery alongwith interest and penalties - HELD THAT:- N/N. 9/2009-ST dated 3 March 2009 supersedes the older N/N. 4/2004 by providing for exemption from the levy of service tax in respect of the taxable services rendered to SEZ Developers and SEZ Units by way of a refund. Notification 9/2009 has in a change of policy modified the earlier procedure of automatic exemption from payment of service tax provided in relation to the authorised operations in a SEZ under the SEZ Act. Exemption of service tax under the new notification is by way of a refund and is subject to the various conditions enumerated therein. The appellant is of the view that the main portion of the Notification exempts the levy itself and that the ‘proviso’ contemplates that even if tax or duty is paid, the exemption is available in the form of Refund. This is not a proper reading of the notification. The exemption provided by the notification is circumscribed by the proviso. There is no scope for intendment. Plain words of the notification must be given meaning to. It cannot be read disjointedly in different parts - the same basic rule of interpretation applies to a notification too. It is within the remit of Government to change a policy keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. Hence when an exemption of service tax is made under a new notification which replaces an old notification, the grant of exemption/ refund is subject to the various conditions enumerated therein. The contention of the appellant is hence devoid of merit. Though the show cause notice was dated, 11.09.2009. the same was received only on 04.05.2010 - HELD THAT:- The impugned order also only examines the date of receipt of OIO, which is not relevant to determine the question of time bar. Hence this matter which was not brought for consideration to the Original Authority by the appellant needs to be examined by him along with the available evidence. Penalty - HELD THAT:- The appellant was earlier availing exemption under Notification No. 4/2004-ST dated 31.3.2004 which got superseded by Notification No. 9/2009-ST dated 3.3.2009. The exemption availed was reflected in the ST-3 returns and the demand is also only for the period of March 2009. The short-payment was noticed during the scrutiny of the ST-3 returns and was a genuine mistake. Hence no penalty is imposable in this case. The demand of duty and interest made in the impugned order is as per law - Penalty set aside - with regard to the issue of time bar as per the normal time limit i.e. the matter regarding the receipt of Show Cause Notice by the appellant within normal time or whether time-barred alone is remanded to the Original Authority to be decided after giving sufficient opportunity to the appellant to state his case both in writing and orally as per law - appeal allowed in part and part matter on remand.
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