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Nokia India Private Ltd. Versus Commissioner of Service Tax

Denial of refund - SEZ unit - services consumed wholly by the appellant within SEZ within which it is situated - rent-a-cab services - outdoor catering services - Notification No.9/2009-ST as amended by Notification No.15/2009-ST - Held that: - Doubtless, the Notification No.9/2009-ST as amended by Notification No.15/2009-ST provided for abinitio exemption from discharge of service tax liability by an SEZ unit in respect of authorized services consumed fully within the SEZ. This however, in my v .....

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No.9/2009-ST, as amended, are satisfied. - Reliance placed on the decision of the case of Intas Pharma Ltd. Vs CST Ahmedabad [2013 (7)703 - CESTAT AHMEDABAD], where it was held that Notification No. 9/2009-ST enable claim of exemption by developers or units in SEZ by way of refund of service tax paid for services used in relation to authorized operations in SEZ - insofar as the claim for refund is filed within six months or within such extended period as the AC or DC of Central Excise shall .....

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refund in respect of services availed by them and consumed fully within the SEZ provided that said services are authorized by competent authority and they are not in dissonance with rule 2(l) of the CCR. In the instant case, there is no allegation that input services provided in relation to outdoor catering or rent-a-cab services are used primarily for personal use or consumption of any employee from the facts on record. They are provided by appellant to their employees which are in the nature .....

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6 - Shri Madhu Mohan Damodhar, Member (Technical) Shri Rony O John, Advocate For the Appellant Shri S. Nagalingam, AC (AR) For the Respondent ORDER These three appeals mainly relate to disallowance of refund with respect to certain services consumed wholly by the appellant within SEZ within which it is situated. The appeal wise details of the dispute are as follows :- ST/41105/2016 November 2009 to December 2009 Total Claim ₹ 13,61,800/- S.No. Heads of Refund Claimed Refund Amount Disallow .....

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ecember 2009 Total Claim ₹ 15,64,118/- S.No. Heads of Refund Claimed Refund Amount Disallowed Refund Amount Allowed Finding (1) Rent a Cab Operator Service 12,92,397/- Not essential input service for authorized operations (2) Refund claimed against credit notes 11,648/- Invoices not eligible documents under Rule 4A (3) Balance 2,60,073/- TOTAL 13,04,045/- 2,60,073/- ST/41107/2016 February, 2010 to March 2010 S.No. Heads of Refund Claimed Refund Amount Disallowed Refund Amount Allowed Findi .....

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efund claim against credit notes). In respect of the refunds disallowed by lower authority and upheld in toto by Commissioner (Appeals), he submits that such disallowance has been made under a misconception of law. He submits that para 1 (c) of the notification No.9/2009-ST dt. 03.03.2009 as amended by Notification No.15/2009-ST dated 20-05-2009 merely clarifies that exemption claimed by developer or units of the SEZ shall be provided by way of refund of service tax paid on the specified service .....

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Tri.-Ahmd.); Reliance Ports and Terminals Ltd. Vs CCE & ST Rajkot 2015 (40) STR 200 (Tri.-Ahmd.); EON Kharadi Infrastructure Pvt. Ltd. Vs CCE Pune-III 2015 (39) STR 267 (Tri.-Mumbai). He also drew my attention to circular No.114/8/2009-ST dt. 20.5.2009 issued by CBEC which clarifies thereto that notification No.15/2009-ST has been issued to provide unconditional exemption to services consumed within SEZ without following refund route. Finally learned advocate submitted that in a recent Final .....

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would be related to a situation when taxable service provided are consumed partially or wholly outside the SEZ and will not apply in a situation where such services are fully consumed within the SEZ. 4. Heard both sides. Doubtless, the Notification No.9/2009-ST as amended by Notification No.15/2009-ST provided for abinitio exemption from discharge of service tax liability by an SEZ unit in respect of authorized services consumed fully within the SEZ. This however, in my view, cannot disentitle .....

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ended, are satisfied. At the same time, type and genre of services provide under these heads should also not foul the definition of Rule 2(l) of the Cenvat Credit Rules, 2004, however, that is not the issue in dispute here. I find that case laws relied upon by learned advocate are on all fours with the issue at hand. Tribunal's decision in Intas Pharma Ltd. Vs CST cited supra has been followed in a number of other subsequent Tribunal s decisions. The relevant paragraphs of the Intas Pharma L .....

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the provider who has remitted Service Tax in relation to taxable services provided to a developer or unit, to carry on authorized operations in a SEZ. 9. However, the issue in this case is refund claimed by the petitioner as the recipient of the taxable service of Architect, Interior Decorator and Consulting Engineer, i.e. in respect of those services provided to the appellant by M/s. Venkataramanan Associates. Notification No. 9/2009-S.T., dated 3-3-2009 as earlier adverted to, enables claim o .....

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exemption claimed by the developer or units of SEZ shall be provided by way of refund of Service Tax paid on the specified services used in relation to the authorised operations in the SEZ, except for services consumed wholly within the SEZ. 11. On true and fair construction of Notifications 9/2009 and 15/2009 issued under Section 93(1) of the Act, considered in the light of the overarching provisions of Sections 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Notifi .....

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iders in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These Notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collect .....

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rks India Pvt. Ltd. [Final Order No.41830-41832/2016 dt. 7.10.2016], which is in appellant's favour is also reproduced below for ready reference : "Appellant is a manufacturing unit located in SEZ. The Approval Committee has permitted the appellant to avail the services of rent-a-cab service as well as outdoor catering service and custom house agent service. But there is no evidence in respect of the third service. Therefore, learned authorities below have correctly disallowed CENVAT cr .....

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