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2023 (2) TMI 731 - CESTAT MUMBAIRefund of Service Tax paid - specified services which are wholly consumed within the SEZ as per notification no. 9/2009-ST dated 03.03.2009 as amended vide notification no.15/2009-ST dated 20.05.2009 - HELD THAT:- On going through the SEZ Act, 2005 and its section 26 (i)(e) specifically provides that all services imported into the SEZ to carry out authorised operation in SEZ shall be exempted. Further in terms of section 51 of the SEZ Act the provisions of the SEZ Act shall have overriding effect over all provisions of any other law for the time being in force and it is settled legal principle that any rule or notification cannot override the Act. Otherwise also the issue involved herein is no longer res integra in view of the decision of this Tribunal in the matter of M/S. EON KHARADI INFRASTRUCTURE PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE III [2015 (2) TMI 614 - CESTAT MUMBAI] in which the Tribunal on an identical issue while deciding in favour of assessee held that refund cannot be denied under the Act for procedural infraction of having paid the Service Tax which ought not to have been paid by the service provider. So far as the reliance placed by learned Authorised Representative in the matter of M/S. EVEREST INDUSTRIES LTD. VERSUS CCE, MEERUT - I [2013 (4) TMI 526 - CESTAT NEW DELHI] is concerned, it is found that the facts in that decision were different. Therein the refund of Cenvat Credit (Service Tax) under Rule 5 of Cenvat Credit Rules, 2004 in respect of input services used in manufacture of final products cleared for export was involved, in which it has been held by the Tribunal that the benefit of refund of accumulated Cenvat Credit on inputs used in manufacture of goods supplied to the SEZ units cannot be given whereas, in the instant matter it is the refund of Service Tax which is in issue and which as per SEZ Act the appellant was not liable to pay. Appeal allowed.
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