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2020 (3) TMI 810 - AT - Service TaxClaim of refund - SEZ unit - Interpretation of statute - Notification No. 09/2009-ST and 17/2011-ST and various provisions of SEZ Act - Revenue is of the view that since the Respondent supplied the electricity generated in their power plant located in SEZ Mundra in DTA also they are not entitle for refund - HELD THAT:- In the identical set of facts and also on the law point, this Tribunal in bunch of appeals filed by Revenue decided the issue in ADANI POWER LTD. VERSUS CST AHMEDABAD AND VICE-VERSA [2016 (3) TMI 231 - CESTAT AHMEDABAD] wherein the Tribunal, after analyzing the relevant notifications, various provisions of SEZ Act and correspondence made with SEZ authorities and Ministry of Commerce and Industries, it was held that mere supply of surplus power in DTA as mentioned in Rule 47 of SEZ Rules, cannot be construed that the assessee carries on business, as there is no DTA Unit of the assessee. Apart from that, SEZ, Mundra, directed the assessee to claim refund in terms of Para 2(c) of the notification, then, rejection of refund claims considering under Para 2(d) of notification by the Adjudicating authority is totally unwarranted and cannot be sustained. Whether Commissioner (Appeals) has power to remand the matter to Adjudicating Authority? - HELD THAT:- This being a case of refund of service tax, clearly covered by the ratio of Hon’ble Gujarat High Court judgment in the case of COMMISSIONER OF SERVICE TAX VERSUS VERSUS ASSOCIATED HOTELS LIMITED [2014 (4) TMI 406 - GUJARAT HIGH COURT]. In the said judgment, the Hon’ble High Court has also referred to the judgments of Hon’ble Supreme Court in the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2007 (3) TMI 8 - SUPREME COURT]. Therefore, the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority, therefore, on this count also, Revenue’s appeal does not sustain. Appeal dismissed - decided against Revenue.
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