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2016 (3) TMI 231 - CESTAT AHMEDABAD

2016 (3) TMI 231 - CESTAT AHMEDABAD - 2016 (44) S.T.R. 146 (Tri. - Ahmd.) - Refund claim - Service Tax paid on specified services for authorized operation in SEZ - Revenue contended that appellant constructed a transmission line outside the SEZ area and supplies electric power to Domestic Tariff Area do not fulfill the criteria of wholly consumed services as defined in explanation (i), (ii) or (iii) to Para 2(a) of the notification and seem to be carrying a different business. - Held that:- mere .....

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ices Ltd Vs CCE & S.T. (LTU), Mumbai - [2012 (8) TMI 500 - CESTAT, MUMBAI] that once the Approval Committee has given the nexus and the justification, it was totally unwarranted on the part of the adjudicating authority and the appellate authority to go into this question and come to their own findings in the matter. Decided against the revenue - ST/10893/2013, ST/12292/2013, ST/12410-12412/2013, - Order No.A/10147-10187/2016 - Dated:- 2-2-2016 - MR. P.K. DAS, MEMBER (JUDICIAL) AND MR. P.M. SALE .....

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, Sr.Advocate, Shri Naresh Thakkar, Shri Hardik Modh, Shri Amit Laddha - Advocates For the Respondent : Dr. J. Nagori, A.R. (Additional Commissioner) ORDER PER: P.K. DAS Common issues are involved in these appeals, and therefore, all are taken up together for disposal. 2. The relevant facts of the case, in brief, are that M/s Adani Power Ltd, (hereinafter referred to as the Assessee ), by letter dt.31.08.2006, applied to the Chairman, Board of Approval and Special Secretary, Department of Commer .....

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posal of the Assessee to set up a power sector for supply to SEZ, EOU and others and notified the area as Special Economic Zone (SEZ). Further, by letter dt.19.06.2007, the Director of Ministry of Commerce & Industry conveyed the Assessee, approval for the Authorised Operation in SEZ for supply of power. By letter dt.27.02.2009, the Ministry was pleased to approve the proposal as Co-Developer for providing infrastructure facility in the multi product SEZ at Mundra. The Officer on Specified D .....

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staurant, Renting of Immovable Property etc in the SEZ for the authorized operation, while developing the said SEZ and filed refund claims of Service Tax paid by them under Notification No.9 AND 15/2009-ST, 17/2011-ST, 40/2012-ST. The jurisdictional Deputy/Assistant Commissioner rejected the refund claims as the services were not wholly consumed in SEZ and the conditions of the notifications were not fulfilled. By the impugned orders, the Commissioner (Appeals) allowed the refund claims on merit .....

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and the matters to the Adjudicating authority. The Assessee also filed appeals against the impugned orders insofar as the rejection of refund claims on some of input service on the ground that the services of transport by air for domestic journey provided is not covered under the approved service category of Passengers embarking in India for International Journey , Reimbursement of expenses etc. 5. Heard both sides and perused the records. RE: APPEALS FILED BY THE REVENUE 6. The main ground of t .....

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Authorised Representative on behalf of the Revenue reiterates the grounds of appeals. He submits that the Explanation (iii) of Paragraph 2(a) of the notification No.17/2011-ST (supra), provides that the expression wholly consumed, in the said notification, would not be applicable, if a developer or unit of SEZ own or carry on any business other than operation in SEZ. In that case, the refund shall be restricted to the extent of the ratio of export turnover and will be calculated as per the for .....

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ls) proceeded on the basis of Rule 47(3) of the SEZ Rules, 2006 which actually supports the Revenues case. It is contended that Rule 47(3) of the SEZ Rules would apply for sale of the surplus electricity in DTA, which establishes that the Assessee carried out business in DTA. He drew the attention of the Bench to the relevant paragraph of the grounds of appeal and the SEZ Rules. He submits that on reading of sub-rule (3) of Rule 47, it is clear that while the Assessee had not availed the benefi .....

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ge Tunda and Siracha. He drew the attention of the Bench to a copy of the letter for approval and the various letters of the Ministry of Commerce & Industry to show that the authorised operation includes supply of power to others as per SEZ Rules. He submits that it is specifically mentioned in the Approval Letter that the authorised operations to be carried out in the power sector in SEZ, for supply to SEZs, EOUs in Gujarat and other SEZs, EOUs and others. In the present case, there is no e .....

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aws. 10. Both the sides referred to various provisions of The SEZ Act and The SEZ Rules as under:- (A) THE SEZ ACT, 2005:- Section 2 - Definitions (a) . . . (c) authorised operations means operations which may be authorised under sub-section (2) of section 4 and sub-section (9) of section 15; . . . (f) Co-Developer means a person who, or a State Government which, has been granted by the Central Government a letter of approval under sub-section (12) of section 3; (g) Developer means a person who, .....

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ection 4 (including Free Trade and Warehousing Zone) and includes an existing Special Economic Zone; . . . SECTION 4. Establishment of Special Economic Zone and? authorisation to operate it to, Developer. - (1) The Developer shall, after the grant of letter of approval under sub-section (10) of section 3, submit the exact particulars of the identified area referred to in sub-sections (2) to (4) of that section, to the Central Government and thereupon that Government may, after satisfying that th .....

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Special Economic Zone, if it considers appropriate, notify subsequently any additional area to be included as a part of that Special Economic Zone. (2) After the appointed day, the Board may, authorise the?Developer to undertake in a Special Economic Zone, such operations which the Central Government may authorise. . . . SECTION 26. Exemptions, drawbacks and concessions to every Developer and entrepreneur. - (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur .....

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entrepreneur under sub-section (1). SECTION 30. Domestic clearance by Units. -?Subject to the conditions specified in the rules made by the Central Government in this behalf, - (a) any goods removed from a Special Economic Zone to the Domestic Tariff Area shall be chargeable to duties of customs including anti-dumping, countervailing and safeguard duties under the Customs Tariff Act, 1975 (51 of 1975), where applicable, as leviable on such goods when imported; and (b) the rate of duty and tarif .....

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ic Tariff Area on payment of Customs duties under section 30, subject to the following conditions, namely. - (a) Domestic Tariff Area sale under sub-rule (1), of goods manufactured by a Unit shall be on submission of import licence, as applicable to the import of similar goods into India, under the provisions of the Foreign Trade Policy : Provided that goods imported or procured from the Domestic Tariff Area and sold as such without being subjected to any manufacturing process shall be subject t .....

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of such goods mentioned under this clause. (2) . . . . . . (3) Surplus power generated in a Special Economic Zones?Developers Power Plant in the SEZ or Unit s captive power plant or diesel generating set may be transferred to Domestic Tariff Area on payment of duty on consumables and raw materials used for generation of power subject to the following conditions, namely :- (a) proposal for sale of surplus power received by the Development Commissioner shall be examined in consultation with the .....

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ology Park Unit, shall be without payment of duty; (d) for sale of surplus power in Domestic Tariff Area, the Unit shall obtain permission from the Specified Officer and the State Government authority concerned; (e)duty on sale of surplus power to the Domestic Tariff Area shall be as provided for in this rule. (4) Valuation and assessment of the goods cleared into (4) Domestic Tariff Area shall be made in accordance with Customs Act and rules made thereunder. 11. The learned Senior Advocate had .....

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l as Developer to set up a Power sector specific SEZ at Mundra, Kutch, Gujarat and approval of Authorised Operations. As you are aware, during February, 2006, APPL had approached the BOA for approving it as Co-developer of Mundra Special Economic Zone Ltd (MSEZL) which had been issued Letter of Permission (LoP) dated 12th February, 2004 by Government of India (GoI) for developing Mundra SEZ covering an area of 10,000 Ha. in Kutch district of Gujarat. Based on consideration of the proposal at the .....

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generation facilities which is one of the long lead and critical infrastructure facility. Accordingly, to expedite the project implementation, it is now proposed that APPL will take the required land of about 294 Hectares from MSEZL on lease for more than 20 years and based on the same APPL is proposing to set up a Power sector specific SEZ. Availability of quality power at competitive rates to the industrial, commercial, residential, institutional and recreational occupants of the SEZ is one of .....

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ver and order has already been placed for the first phase. The Power generated by the Developer will be supplied to the Units and Developers of SEZs in Gujarat and other SEZs, EOUs and others as permitted by SEZ Rules. We hereby submit our application in Form A for your consideration and for according approval to Adani Power Private Limited, as Developer of a Power sector specific SEZ at Mundra, Kutch district in Gujarat, so that the necessary infrastructure facilities can be created at the earl .....

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mal approval to your proposal for development, operation and maintenance of the sector specific Special Economic Zone for power sector for supply of power to SEZs, EOUs in Gujarat and other SEZs, EOUs and others at Village Tunda and Siracha, Taluka Mundra, District Kutch, Gujarat by M/s Adani Power Pvt. Ltd, as per details given below:- I. PROPOSAL and PROJECT DETAILS:- To set up a sector specific Special Economic Zone for power sector for supply of power to SEZs, EOUs in Gujarat and other SEZs, .....

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ed to as the Act, to set up a sector specific Special Economic Zone for power sector for supply of power to Special Economic Zones (SEZs) and Export Oriented Units (EOUs) in Gujarat and other SEZs, EOUs and others at Village Tunda and Siracha, Taluka Mundra, District Kutch in the State of Gujarat; And whereas the Central Government is satisfied that requirements under sub-section (8) of Section 3 of the said Act, and other related requirements are fulfilled and it has granted letter of approval .....

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ing area at Villages Tunda and Siracha, Taluka Mundra, District Kutch in the State of Gujarat, comprising of the Survey numbers and the area given below in the Table, as a Special Economic Zone, namely:- iv) By letter dt.19.06.2007, the Director of the Ministry of Commerce and Industry, Department of Commerce, conveyed the approval of the authorised operation to be carried out by the Assessee. The relevant portion of the letter dt.19.06.2007 is reproduced below:- Sub: Authorised operations in re .....

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d other SEZs, EOUs and others at Village Tunda and Siracha, Taluka Mundra, District Kutch, Gujarat, proposed to be developed by M/s Adani Power Private Limited, as per the list attached at Annexure of this letter in terms of the Special Economic Zones Act, 2005 and the Special Economic Zones Rules, 2006. 2. Government has, on 27th October, 2006, notified the list of authorized operations that can be undertaken in the SEZs and these alone would qualify for exemptions, concessions and drawback. A .....

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EZ, Mundra Port, conveyed approval of List of Specified Services. vi) The Specified Officer, SEZ, Mundra, directed by letter dt.04.10.2012, to the Assessee to claim refund of Service Tax in terms of Para 2(c) of Notification No.40/2012, dt.20.06.2012, Notification No.17/2011-ST. The said letter dt.04.10.2012 reads as under:- F.No.APSEZ/CUS/S.TMP./2011-12 Date:04.10.2012 To M/s Adani Power Ltd, Shikhar, Near Mithakali Six Roads, Navrangpura, Ahmedabad. Sub: List of Specified Services for Authoris .....

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ication No.40/2012-ST, dt.20.06.2012 and in terms of Para 2(c) of Notification No.40/2012-Service Tax dt.20.06.2012, you can claim the refund of Service Tax, if already paid, on the services included in the services approved by UAC for your authorized operations under both aforesaid notifications i.e.Notification No.17/2011-ST as well as Notification No.40/2012-ST. This is for your information please. Sd/- (A.G. Pipalia) Specified Officer, APSEZ, Mundra 12. Clause (e) of Section 26(l) of SEZ Act .....

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relation to the authorized operation in a SEZ and received by a developer or units of a SEZ, whether or not the taxable services are provided inside the SEZ from the whole of Service Tax leviable thereon under Section 66 of the Act, 1994 and issues notifications time to time, being Nos.9/2009-ST, dt.03.03.2009, amended by 15/2009-ST, dt.20.05.2009, 17/2011-ST, dt.01.03.2011 etc. For the purpose of proper appreciation of the case, the relevant portion of the Notification No.17/2011-ST, dt.01.03. .....

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published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide G.S.R. 146(E), dated the 3rd March, 2009, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services specified in clause (105) of section 65 of the Finance Act, chargeable to tax under section 66 or section 66A of the Finance Act, received by a Unit loca .....

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specified services received and used for authorised operations are wholly consumed within the SEZ, the provider of such services or the receiver of such services on reverse charge basis, as the case may be, has the option not to pay the service tax ab initio instead of the Unit or Developer claiming exemption by way of refund in terms of this notification. Explanation.- For the purposes of this notification, the expression wholly consumed refer to following taxable services, received by a Deve .....

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rry on any business other than the operations in the SEZ; (b) for the purpose of claiming exemption, the Developer or Unit of SEZ shall obtain a list of taxable services as are required for the authorised operations approved by the Approval Committee (hereinafter referred to as the specified services) of the concerned SEZ; (c) the Developer or Unit of SEZ who does not own or carry out any business other than SEZ operations, shall furnish a declaration to that effect in Form A-1, verified by the .....

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d on specified services used for SEZ Authorised Operations shared with DTA Unit for the period X Export turnover of SEZ Unit for the period/Total turnover for the period 13. In the present appeals, the Assessee is approved for authorized operations and having status of unit for development, operation and maintenance of the sector specific SEZ for power sector for supply of power and received various input services used for the authorized operation. They filed refund claims as per Para 2(c) of th .....

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refund claims. By the impugned orders, Commissioner (Appeals) allowed the appeal of the Assessee on this issue. The learned Authorised Representative for the Revenue drew our attention to Show Cause Notice dt.23.07.2012. It has been alleged that the specified services such as Banking and Financial Services which is service other than those falling under (i) & (ii) of Para 2 of Notification No.17/2011-ST, dt.01.03.2011 the criteria to consider these as wholly consumed within the SEZ is that t .....

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d most of the services outside the notified area. 14. The learned Authorised Representative for the Revenue particularly drew the attention of the Bench to the Paragraph 6.3 and 6.4 of the grounds of appeal of the Revenue, which are reproduced below:- 6.3 Thus, in view of the provisions laid down in Notification No.17/2011-ST, dt.01.03.2011, the refund of Service Tax paid on the specified services is available for the services, received by a unit located in a Special Economic Zone or Developer o .....

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ed in explanation (i), (ii) or (iii) to Para 2(a) of the notification, since in the present case, the claimant is engaged in SEZ operations as well as DTA operations. Therefore, the services, on which the claimant has filed refund claim are not covered under explanation (iii) and cannot be considered as wholly consumed services within the SEZ unit. 6.4 Commissioner (A) has held that power generation and supply is one of the activities of authorized operation. However, even though power generatio .....

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nd consumed in respect of activities carried out by the claimant outside SEZ cannot be considered as received and consumed in authorized operation within SEZ. 15. We find that there is no dispute that the Assessee fulfilled the condition of Para 2(b) of the notification, as the Assessee obtained a list of taxable services as required for authorized operation approved by the Approval Committee of the concerned SEZ. The learned Senior Advocate submits that the Assessee does not own or carry out an .....

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the notification. We find that as per Para 2(a) of notification, the exemption shall be provided by way of refund of Service Tax paid on the specified services received for the authorized operation in a SEZ. Proviso to Para 2(a) had given option where the specified services received and used for authorized operation are wholly consumed within the SEZ, the Assessee may not pay the Service Tax. The learned Senior Advocate submits that they have not availed the option as per proviso to Para 2(a) a .....

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Tariff Area (DTA) Unit in Para 2(d), of the notification, if read harmoniously, make it clear that the expression wholly consumed referred to the in the Explanation, would be applicable to sharing of business between authorized operation in SEZ Unit and DTA Unit. Thus, it is required to be ascertained sharing of business of specified services between SEZ Unit and DTA Unit. On perusal of the grounds of appeal filed by Revenue, we do not find any averment that there is a DTA unit of the Assessee .....

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Rules, 2006 provides surplus power generated in a SEZ may be transferred to DTA on payment of duty on consumable and raw material used for generation of power. On a query from the Bench, the learned Senior Advocate submits that they have not availed the CENVAT Credit on goods used for transmission power and cables used for transmission outside SEZ. It is clear that the Assessee had not availed CENVAT Credit on the raw materials or consumables used in the transmission of power in DTA. The learne .....

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not mean that the Assessee owns or carries on any business other than the business in SEZ. 17. There is a distinction between the expression Sales in DTA as referred in Rule 47 of SEZ Rules and the words carry on any business other than operations in SEZ and sharing between Authorised operation in SEZ Unit and DTA Unit as referred in Para 2(a) and 2(d) of the notification. The word business is one of wide amplitude and it means an activity carried on continuously and systematically by a person b .....

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lied in DTA as per Rule 47 of SEZ Rules, which cannot be treated as a business. There is no material available on record that the Assessee has a DTA Unit, it cannot be construed that the Assessee is carrying out business other than operations in SEZ. So, we do not find any merit in the grounds of appeal filed by the Revenue. 18. The Introduction of SEZ Act, 2006 stated that the objective of Special Economic Zones include making available goods and services free of taxes and duties supported by i .....

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the present case, notifications issued by Central Government as stated above, exempting the Service Tax on taxable services received by unit or developer of SEZ, are in consequence of Section 26 of the SEZ Act 2005. In terms of Section 2(c) of SEZ Act 2005 Authorised operation means operations which may be authorized under Section 4 (2) and Section 15(a) of SEZ Act. There is no dispute that the Assessee was granted Letter of Approval and authorization to operate in SEZ by BOA. Notification dt.10 .....

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learned Authorised Representative submits that the word others in the said notification would apply to at Village Tunda and Siracha Taluka Mundra . We are unable to accept the contention of the learned Authorised Representative. The expressions supply of power to Special Economic Zones (SEZs) and Export Oriented Units (EOUs) in Gujarat and other SEZs, EOUs and others in Notification dt.10.05.2007 would be read together and the plurality of word Others would indicate the other places, apart from .....

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the Assessee supplied the power to DTA is beyond the authorized operation, cannot be accepted. 19. It is significant to note 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 by letter dated 04.10.2012, directed the Assessee to claim refund in terms of Para 2(c) of the notification, then, rejection of refund claims considering under Para 2 .....

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s regards the refund claim of ₹ 6,66,794/- which has been rejected on the ground that the services to which this amount pertains do not have direct nexus with the authorized operations undertaken by the appellant, this stand of the department is totally incorrect. The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorize .....

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dingly set aside. 20. Revenue also filed appeals against the impugned orders on the ground that the Commissioner (Appeals) has no power to remand the matter. The Hon'ble High Court of Gujarat in the case of Commissioner of Service Tax Vs Associated Hotels Ltd - 2015 (37) STR 723 (Guj.), on the identical issue dismissed the appeal filed by the Revenue. In that case, the question raised before the Hon'ble High Court as to whether the CESTAT is correct in holding that in Service Tax matters .....

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ub-section (5) of Section 85 though requires the Commissioner (Appeals) to follow the same procedure and exercise same powers in making orders under Section 85, as he does in the Central Excise Act, 1944 in appeals, this sub-section itself starts with the expression subject to the provisions of this Chapter . Sub-section (4) of Section 85 itself contains the width of the power of the Commissioner (Appeals) in hearing the proceedings of appeal under Section 85. The scope of such powers flowing fr .....

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