9911796707
TMI Blog2014 (7) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... d the copy of approval list of taxable services issued by the Development Commissioner, Kandla Special Economic Zone, Ministry of Commerce and Industry, Ahmedabad, under letter No. KASEZ/DCO/ Pharmez/II/001-2009-10, dated 20-5-2010. On scrutiny of the refund claim various discrepancies were found and therefore a show cause notice was issued to the appellants. The adjudicating authority after considering the facts on record and defense reply of the appellants passed the impugned order vide which the entire refund claim was rejected on the following grounds : (a) The services rendered by M/s. Cadila Healthcare Ltd. (CHL), in terms of the agreement with the appellants and received payments under bill no. 9, dated 27-11-2009, 10, dated 31-12-2009 and 12, dated 31-3-2010 did not appear to be related to the authorized operations in the above said SEZ. The appellants in their reply were silent about this objection. (b) The bills raised by CHL did not contain nature of services provided and also the appellants had not produced evidence to show the receipt and use of the specified services in authorized operations in the SEZ. In the defense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e". From the description of services mentioned it cannot be ascertained that the said services and the services related to "regulatory approval by for products in USA and Europe appears in the list of approved services. The appellants had not submitted any clarification in regard that how these services can be classified under "Scientific & Technical Consultancy service and how it can be considered in the list of approved services. (g) The appellants had contended that it is necessary for SEZ to procure taxable services right from the budding stage and it is only after having obtained such support service of business that the unit would start functioning for production. As per the Notification No. 9/2009-S.T., dated 3-3-2009 exemption was granted by way of refund to the taxable services which are provided in relation to authorized operations in the SEZ and received by a developer or units of a special economic zone, whether or not provided inside the SEZ, from whole of the Service Tax leviable thereon under Section 66 of the Finance Act provided units of SEZ actually used the specified services in relation to the authorized operations in the SEZ. In the let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d analysis and scientific or technical consultancy services. It is his submission that the Scientific Consultancy Service which has been received by the appellant is in respect of technical and scientific services for research, development and analysis and testing of the products as identified by the appellant. It is his submission that another reason for dismissing or rejecting the refund claim is on the ground that the SEZ unit was not functioning either at the time when the services were said to be received or at the time of filing the claim. It is the submission of the Ld. Counsel that the issue is squarely settled by Co-ordinate Bench in the Tata Consultancy Services Ltd. - 2012-TIOL-2034-CESTAT-MUM-A-N-1 = 2013 (29) S.T.R. 393 (Tribunal). 5. Learned departmental representative on the other hand reiterated the findings of the lower authorities. 6. After careful consideration of the submissions made both the sides, we find that the appellant has a unit in Kandla Special Economic Zone and functioning under Letter of Authority from the Development Commissioner, KASEZ. The appellants had filed refund claim for an amount of Service Tax paid by them under Scientific and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered as part of the manufacturing process and business activity. Therefore, we are unable to agree with the view taken by the department that in case the goods have not reached commercial production stage, credit is not admissible. The reliance of the Commissioner on the observations of the Tribunal in the case of M/s. Crompton Greaves Limited also seems to be misplaced, in view of the fact that there was no detailed findings. In any case, as rightly pointed out by the learned advocate and also seen from the several decisions of the Tribunal, what is to be seen for considering the eligibility of service tax paid as Cenvat credit is as to whether they are covered by the inclusive definition or not. Definition as reproduced shows that it is a wide definition and in terms of the definition, credit is admissible. As regards C & F Services also, we find that observation of the Commissioner is that a service of C & F cannot be considered as a sale promotion, is not correct. C & F has a definite role to play in promotion of sales by storing the goods and supplying the same to the customers, thus he is actually promoting the sales. Further the decision of the Larger Bench of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y set aside. 6.2 Coming to the next question, whether in respect of the services which were wholly consumed and which were fully exempt from payment of duty, whether the appellants can be granted refund under Notification No. 9/2009-S.T., dated 3-3-2009 as amended by Notification No. 15/2009-S.T., dated 20-5-2009 through which amendment a condition was inserted stating that the refund procedure prescribed under the said Notification shall apply only in the case of services used in relation to the authorized operations in the SEZ except for services consumed wholly within the SEZ. This view of the department is also incorrect. Notification No. 9/2009-S.T. exempts the taxable services specified in Clause (105) of Section 65 of the Finance Act, 1994 which are provided in relation to the authorized operations in a SEZ and received by the developer or units of a SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable thereon under Section 66 of the Finance Act, 1994. The refund procedure given below for operationalising the exemption applies to services which are procured from outside in respect of which the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
