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COMMISSIONER Versus LARSEN AND TOUBRO LTD

2016 (7) TMI 307 - GUJARAT HIGH COURT

Taxability of services provided by the SEZ unit to the DTA unit of the same assessee - principle of mutuality - Maintainability of appeal before the High Court - whether the appeal would lie before the Honble Supreme Court as provided under section 35(L) of the Act? - Demand of service tax with interest and penalty - The assessee opposed such proposal mainly on the ground that one unit of a company cannot provide service to another unit since for providing taxable service, it is necessary that t .....

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he Special Economic Zones Rules, 2006 while recognising that the same legal entity may have two units, one in SEZ and another in DTA, mandates that the two would have distinct identities with separate books of accounts. - For various purposes, thus a SEZ unit of an enterprise which also has an additional unit in Domestic Tariff Area, therefore, has a distinct identity. Its accounts are separate, its accounting would be separate. This artificial creation of separate accounting of a unit or an .....

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in the Finance Act, 1994 and Special Economic Zones Act, 2005, the contention of the respondent company that on the principle of mutuality, the services rendered by its SEZ unit to a Domestic Tariff Area unit, would not be chargeable to service tax, cannot be accepted. - Valuation - free services - Held that:- When the service is provided but no value thereof is charged, there would be no question of collecting service tax. No provision has been brought to our notice in the Finance Act, 199 .....

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, while therefore, dismissing the Revenue's appeal against the judgement of the Tribunal, on the grounds different from which appealed to the Tribunal, we answer the question clarifying that in the present case, no service tax was leviable since the SEZ unit of respondent assessee had not charged for the services provided to its DTA unit. - Decided against the revenue. - TAX APPEAL NO. 42 of 2013 With TAX APPEAL NO. 43 of 2013 - Dated:- 1-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR T .....

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rder passed by the Customs, Excise & Service Tax Appellate Tribunal, present appeal before this Court would be maintainable or not and/or whether the appeal would lie before the Honble Supreme Court as provided under section 35(L) of the Act? (II) If the Question No.(I) is answered in affirmative and it is held that the appeal would be maintainable before this Court, in that case, to consider the following question : (i) Whether the Honble CESTAT Bench, Ahmedabad has erred in holding that fo .....

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994( the Act for short). The sole surviving question therefore, is whether the Tribunal erred in holding that the respondent was not liable to pay service tax. This question arises in the following background : 4. The respondent is a company registered under the Companies Act and has various units established in the country. One of its units is situated in the Special Economic Zone( SEZ for short). This Special Economic Zone unit had carried out project management activities including planning a .....

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e assessee should not be levied with penalty and interest. The assessee opposed such proposal mainly on the ground that one unit of a company cannot provide service to another unit since for providing taxable service, it is necessary that there should be two separate entities. The assessee pressed in service the principle of mutuality and contended that there cannot be any service tax on such activities. The adjudicating authority however, was of the opinion that the SEZ and DTA units of the ass .....

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Zones Rules, 2006,(hereinafter referred to as the Rules of 2006 ) which provides that if an enterprise is operating both as a Domestic Tariff area unit as well as a Special Economic Zone Unit, it shall have two distinct identities with separate books of accounts, but it shall not be necessary for the Special Economic Zone unit to be a separate legal entity. He recorded that assessee's SEZ and DTA units are maintaining separate books of accounts, are separately and independently registered co .....

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n a proprietary concern or an association of person or body of individuals, a local authority and any agency office or branch owned or controlled by such individual, HUF etc. He was therefore, of the opinion that the respondent assessee had not paid service tax though liable. He also held that the respondent assessee had breached relevant provisions of the Finance Act, 1944. He therefore, ordered recovery of service tax with interest and also imposed penalties. 5. This order was carried in appea .....

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be levied on a transaction between a person and another person and levy of service tax therefore, would require a transaction between two persons. It is against this judgement that the department has filed the present appeals. 6. Learned counsel for the department contended that the Tribunal committed an error in interpreting the provisions of the Finance Act, 1994. SEZ unit was distinct and separate entity and provided taxable service to DTA unit of the same company. Merely because both the un .....

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ssioner of Central Excise reported in 2013(287) ELT 281 in which the assessee had two units within a common boundary wall, having two separate central excise registration. In such background, the Court observed that the assessee having obtained separate registration was estopped from contending that the two were not separate factories, simply because they were situated within a common boundary wall. 7. On the other hand, learned counsel for the respondent opposed the appeals contending that the .....

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ed in 2015(323) ELT 46 (Uttarakhand), in which it was found that the company had two manufacturing units. In context of small scale industries exemption, it was held that the manufacturer of both the units is a single legal entity and, therefore, aggregate value of clearances of both the units must be taken into account for determining the eligibility of SSI exemption. 2) In case of Sahney Steel and Press works Limited and another v. Commercial Tax Officer and others reported in (1985) 4 Supreme .....

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s branch office outside the State and arranged to deliver them to the buyer. 3) In case of UP State Cement Corporation Ltd. v. Commissioner of Sales Tax, UP reported in 1979 (43) STC 475 (ALL), it was noticed that UP Government owned two cement factories. One supplied cement to another for which it was also billed. In context of liability to pay sales tax, it was observed that before a transaction can be taxed and included in the turnover of a dealer, it has to be a sale. In order to constitute .....

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rties and having perused the materials on record, we may refer to the relevant statutory provisions. Section 66 of the Finance Act,1994 pertains to charge of service tax and provides that there shall be levied a tax referred to as the service tax at the rate of 12 per cent of the value of taxable services referred in clauses (a) to (zzzzw) in subsection( 105) of section 65 and collected in such manner as may be prescribed. Section 65(105) defines various taxable services. Clause (zzzq) thereof p .....

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distribution and logistics, customer relationship management services, accounting and processing of transactions, [operational or administrative assistance in any manner], formulation of customer service and pricing policies, infrastructural support services and other transaction processing. Explanation For the purposes of this clause, the expression "infrastructural support services" includes providing office along with office utilities, lounge, reception with competent personnel to h .....

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proviso to subsection( 4) of section 3 and subsection( 1) of section 4. Section 2(zc) defines unit to mean a unit set up by an entrepreneur in a Special Economic Zone and would include an existing unit. Section 7 of the Special Economic Zones Act, 2005 pertains to exemption from taxes, duties or cess and provides that any goods or services exported out of, or imported into, or procured from the Domestic Tariff Area by a unit in a Special Economic Zone or a developer, shall subject to such terms .....

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rvailing 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 tariff valuation, if any, applicable to goods removed from a Special Economic Zone shall be at the rate and tariff valuation in force as on the date of such removal, and where such date is not ascertainable, on the date of payment of duty. 11. Under section 30 of this Act, therefore, any goods removed from a Special Economic Zone t .....

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ring specified project in the SEZ units. Subrule( 7) thereof reads as under : (7) If an enterprise is operating both as a Domestic Tariff Area unit as well as a Special Economic Zone Unit, it shall have two distinct identities with separate books of accounts, but it shall not be necessary for the Special Economic Zone unit to be a separate legal entity: Provided that foreign companies can also set up manufacturing units as their branch operations in the Special Economic Zones in accordance with .....

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ly indicate in value terms the goods imported or procured from Domestic Tariff Area, consumption or utilization of goods, production of goods, including byproducts, waste or scrap or remnants, disposal of goods manufactured or produced, by way of exports, sales or supplies in the domestic tariff area or transfer to Special Economic Zone or Export Oriented Unit or Electronic Hardware Technology Park or Software Technology Park Units or Biotechnology Park Unit, as the case may be, and balance in s .....

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07.2016 14. From these statutory provisions, it can be seen that upon the support services of business being provided by a service provider, service tax at the prescribed rates would be levied. In view of materials on record, we have proceeded on the basis that the respondent company SEZ unit had provided such services to its DTA unit. We may notice that the Special Economic Zones Act was enacted to provide for the establishment, development and management of the Special Economic Zones for the p .....

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xes, duties or cess under all enactments specified in the First Schedule. Thus, for the purpose of taxation of various kinds within the unit situated in the Special Economic Zones, receive a special consideration. It is because of these concessions granted to such units that under section 30 of the Special Economic Zones Act, 2005, it is provided that in cases of goods removed from a Special Economic Zone to the Domestic Tariff Area, the same would be chargeable to duties of customs including an .....

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a, consumption or utilization of goods, production of goods,etc. Under subrule( 3), a unit would have to submit Annual Performance Reports which shall have to be placed before the Approval Committee for consideration. Likewise, under subrule( 7) of Rule 19 it is provided that if an enterprise is operating both Domestic Tariff Area unit as well as a Special Economic Zone Unit, it shall have two distinct identities with separate books of accounts, but it shall not be necessary for the Special Econ .....

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cause of the special concessions in taxation, including duty drawbacks and other exemptions that the SEZ unit has to maintain scrupulously accounts of all imports and procurements from Domestic Tariff Area. It also has to pay customs duty on goods cleared to Domestic Tariff areas as if such goods were imported into India. Subrule( 7) of Rule 19 clarifies that in case of an enterprise which has unit both situated in SEZ as well as in Domestic Tariff Area, the two would have distinct identities wi .....

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cases, where Income Tax Act provides profit linked incentives such as deductions under sections 80HHC, 80I, 80IA, 80IB, etc., the industry or unit engaged in such eligible business is treated separate and distinct for the purpose of accounting so that deductions of the assessee out of its eligible business can be separately worked out. Similar principles would apply in other special deductions also whether area based or investment based. It may be that while assessing the company, its total inco .....

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s rendered by its SEZ unit to a Domestic Tariff Area unit, would not be chargeable to service tax, cannot be accepted. If this principle is applied, the very artificial creation of treating a SEZ unit separate and distinct for accounting, consumption of raw materials, production and clearance purposes would shatter. The concept of mutuality is essentially based on the principle that where certain services or facilities are created by group of persons for themselves, as in the case of a club for .....

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s needed is to ascertain the value of taxable service. In other words, service tax can be levied only if the service is provided, even if it is otherwise, a taxable service, carries a certain value. If the value of service provided is nil, there would be no occasion for charging the service tax. In essence, thus section 66 aims at collecting service tax when a certain service is provided for a value. To put it conversely, when the service is provided but no value thereof is charged, there would .....

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matter and come to appropriate conclusion on the basis of available materials on record. However, if the department proceeds on the premise that a certain service though otherwise a taxable service, the service provider did not collect any charge for the same from the service recipient, in our opinion, it would simply not be possible for the authority to collect any service tax on such service. 19. We may notice that explanation to section 65 states as under : For the purposes of this section, .....

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