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TMI Blog2012 (6) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... is engaged in rendering of services of Custom House Agent, Clearing and Forwarding Agent, Storage and Warehousing, Business Auxillary Service, Transport of goods by road and Business Support Service, etc. During the course of audit of the records of the company from 06/08/2007 to 08/08/2007 it was noticed that the assessee was availing wrongly exemption of service tax under Notification No.4/2004-ST dated 31/03/2004 for the CHA services rendered outside the unit situated at Special Economic Zone, Chennai. It is further noticed that the assessee had made late payment of service tax for the month of October & November 2006 and January & March 2007 but did not pay the interest thereon. It was further found that the assessee has been rendering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provider was exempt under Notification NO.4/2004-ST dated 31/03/2004 and, therefore, they are eligible for the said exemption. He further referred to Section 26 of the Special Economic Zone Act, 2005 and rule 31 of the SEZ Ruled, 2006, wherein it is stated that every developer and the entrepreneur shall be entitled to exemption from service tax under Chapter V of the Finance Act, 1994 on taxable services provided to a developer or a unit to carry on the authorized operations in a Special Economic Zone. Accordingly, he argued that Notification No.4/2004-ST has to be read along with Section 26 of the SEZ Act, 2005 and the rules made thereunder and therefore, the appellant is rightly entitled for the service tax exemption. He also relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the benefit under Notification No.4/2004-ST and prayus for putting the appellant to terms. 5. We have carefully considered the rival submissions. 5.1 Notification No.4/2004-ST, effective from 31-3-2004, issued under section 93 of the Finance Act, 1994, exempts taxable services provided to developer of a Special Economic Zone or a unit in the Special Economic Zone by any service provider for consumption of service within such Special Economic Zone. The argument of the appellant that the notification has to b e read along with Special Economic Zone Act, 2005 and the Special Economic Zones Rules, 2006 is devoid of merits for the reason that the latter enactments came much later, more than one year after the issue of notification No.4/2004- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction..." Again in the case of Bombay Chemical Pvt, Lts., Vs. CCE, Bombay, reported in 1995 (77) ELT 3 (SC), the hon'ble apex Court inter-alia held as follows: "One of settled principled of construction of an exemption notification is that it should be construed strictly, but once a goods is found to satisfy the test by which it falls in the exemption notification then it cannot be excluded from it by construing such notification narrowly". In the Sarabhai M. Chemicals Vs. CCE, Vadodara, reported in 2005 (179) ELT 3 (SC) a three judge bench of the hon'ble apex Court held as follows:- "It is well settled that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e apex court. The law laid down by the hon'ble apex court is binding on all. Further, this Tribunal in the case of Shobha Developers Ltd., in a similar situation held that the provisions of Special Economic Zone Act, 2005 or the Rules made thereunder cannot be said to have any application while considering the eligibility to Cenvat Credit under the Cenvat Credit Rules, 2004. 5.6 The hon'ble High Court of Gujarat in the case of UOI Vs. Essar Steel Ltd. reported in 2008 (232) ELT 617 considered a question as to whether export duty under the Customs Act could be levied on supplies made from the DTA to a unit in the SEZ, taking into account the provisions of Section 2 (m) (ii) of the Special Economic Zone Act, 2005, read with section 51 ibid w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Economic zone, then the benefit of notification No.4/2004-ST will not be available. 5.9 The appellant has not pleaded any financial hardship in their stay application. The hon'ble High Court of Andhra Pradesh in SQL Star International Ltd. Vs. Commissioner of Customs, Hyderabad [2012 (276) ELT 465 (A.P.)] held that stay cannot be granted merely on prima facie case being shown. Balance of convenience and prejudice to interest of public revenue needs to be taken into consideration while granting stay. In the instant case not only that the appellant has not made out a prima facie case but also the balance of convenience and interest of revenue demand that the appellant be put to terms. 6. In the light of the foregoing, we are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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