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TMI Blog2015 (7) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT (Per Smt.Vasanti A. Naik, J.) Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties. 2. By this petition, the petitioner Sai Wardha Power Company Limited, Warora seeks a direction to the respondent No.2Deputy Commissioner, Customs, Central Excise & Service Tax, Chandrapur to forthwith issue the authorization in Form A2 to the petitioner. A declaration that the petitioner is entitled to avail the benefit of ab initio exemption from service tax in terms of Notification No.12 of 2013 is also sought. 3. Few facts giving rise to the petition are stated thus - The petitioner is a power generating unit in the Special Economic Zone (hereinafter referred to as "SEZ" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit in Form A2. The SEZ unit was required to furnish to the Jurisdictional Superintendent of Central Excise a quarterly statement, in Form A3 furnishing the details of specified services received by it without payment of service tax. The notification further enjoined a duty on the SEZ unit to furnish an undertaking, in Form A1 that in case the specified services on which the exemption had been claimed, were not exclusively used for the authorized operations or were not found to have been used exclusively for authorized operations, it would pay to the Government an amount that is claimed by way of exemption from service tax along with interest on delayed payment of service tax. 4. It is not in dispute that the petitioner unit desired to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegally refused to issue Form A2 to the petitioner unit on the ground that the petitioner unit was involved in the activity of manufacture and sale of electricity and as sale of electricity did not fall within the list of specified services, the petitioner was not entitled to Form A2. It is submitted that the appellate Authority, i.e. the Commissioner (Appeals) Central Excise and Customs, Nagpur has held in the appeals filed by the Petitioner unit that an unit would be required to sell the goods that have been produced and the observation of the subordinate authority that the sale of electricity is a separate business, is incorrect. It is stated that the decision of the appellate authority, dated 29/10/2013 was accepted by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax were rejected in the past and the petitioner had not achieved the Positive Net Foreign Exchange as per Rule 53 of the Rules of 2006. It is submitted that the reason for refusal of authorization in Form A2 on the ground that M/s. Krishnapatnam Port Company Limited, that provides some services to the petitioner, had not paid the service tax is fallacious. In the circumstances stated herein above, the learned Senior Counsel sought for the relief. 6. Shri Mirza, the learned counsel for the respondent Nos.2 and 3, supported the action of the respondent No.2 and submitted that before granting authorization in favour of the petitioner in Form A2, the respondent No.2 wanted to ensure whether the authorization could be so granted. It is, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roval to the list of services for which the petitioner desired to claim exemption from service tax. Admittedly, the petitioner unit also furnished a declaration, in Form A1 verified by the Specified Officer of the SEZ along with the list of specified services. Once, the SEZ unit secures the approval of the 'Approval Committee' to the list of the services on which the SEZ unit wishes to claim exemption from service tax and furnishes a declaration, in Form A1 verified by the Specified Officer of the SEZ, it is rightly submitted on behalf of the petitioner that the respondent No.2 or for that matter, any Jurisdictional Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise is enjoined with a duty to issue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the reasons recorded in the impugned communication. There is nothing in Notification No.12 of 2013 that prohibits an SEZ unit from availing the option of not paying the service tax ab initio, if the Positive Net Foreign Exchange is not achieved. At least, the respondent No.2 has not pointed out any material in that regard. We do not find any propriety in the action on the part of the respondent No.2 in refusing the authorization to the petitioner unit in Form A2 merely because M/s.Krishnapatnam Port Company Limited had failed to pay the service tax in respect of some services rendered to the petitioner unit in the past. We find on a perusal of the documents annexed to the petition and the communications exchanged between the parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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