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M/s Sudhir Chand Jain Versus Commissioner of Central Excise, Ghaziabad

2017 (9) TMI 783 - CESTAT ALLAHABAD

Sub-contract - services utilized fully in SEZ - whether the appellant is entitled to exemption from Service tax in terms of N/N. 4/2004-ST read with N/N. 9/2009-ST as amended by N/N. 15/2009-ST which provided for exemption to the provider of service if such services are provided for utilization fully in the SEZ? - Held that: - the approval should be either by the Deputy Commissioner and/or Board of approvals as the case case may be. Here, admittedly the work order has been issued by Deputy Commi .....

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bber, Advocate, for Appellant Shri D. K. Deb, Assistant Commissioner (AR), for Respondent ORDER The issue in this appeal by the appellant-assessee a contracter, who has rendered services unit in the capacity of a Sub-contractor in the nature of civil construction in the Noida-SEZ, Noida under the main contractor, where the civil construction work was allotted to NBCC by the Deputy Commissioner of SEZ, whether the appellant is entitled to exemption from Service tax in terms of Notification No. 4/ .....

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period 2008-09 to 2010-11, among others, Revenue noticed that the appellant have provided construction services to the NSEZ, as a Sub-contractor through, M/s Anurag Enterprises. It appeared to Revenue that the appellant was required to pay Service tax on the payments received for provision of services of construction, civil construction work for the reason that service provided by them in relation to construction of Standard Design Factory (SDF) Block-L, at NSEZ, Noida though exempted vide noti .....

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rvice provider-appellant were included in duly approved list of authorized operations and actually have been wholly consumed within the NSEZ. It, further, appeared that the appellant is not entitled for the exemption in respect of the aforementioned service provided at NSEZ under the notification and were liable to service tax on the payments received from M/s Anurag Enterprises for the period 2008-09, 2009-10 & 2010-11. It is further mentioned in the Show Cause Notice that the construction .....

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g the period 2008-09 to 2010-11 to the NSEZ, with further proposal of interest and penalty. 3. The Show Cause Notice was adjudicated on contest and vide Order-in-Original dated 15/06/2015, the proposed demand was confirmed with interest and further equal amount of penalty was imposed under Section 78 of the Finance Act, 1994 and further penalty of ₹ 10,000/- under Section 77 of the Finance Act, 1994 along with other demands. Being aggrieved the appellant preferred appeal before ld. Commiss .....

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ed the operating agency by NSEZ Authority. Clause 17 of the terms and conditions states-NBCC is operating agency and further appropriate agency in agreement means; any consultant or specialist appointed by NBCC Ltd., in consultation with the DC, NSEZ. Further, Clause 18 states - NBCC will charge 9% of the actual cost of the project to be constructed/supervision as agency charges. In addition to above 2% of the project cost will be payable as the fee of the consultant for design and drawing of th .....

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nt herein, is for the Deputy Commissioner, NSEZ, Noida, who is the principal under the facts and circumstances. He, further, states that the work may be either done by the main contractor or by the sub-contractor, but the transfer of property in the goods or the service accrues to the principal. It is not the case that there are separate services and transfer of property taking place, from the sub-contractor to the main contractor, main contractor to the operating agency and from the operating a .....

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services. Where the service is being consumed for the development of the SEZ in the course of work allotted by the Deputy Commissioner of the SEZ, no further approval committee is required. Accordingly, he prays for allowing the appeal and setting aside the impugned order to the extent, it has confirmed the demand of duty for the services supplied to the Deputy Commissioner of the SEZ through their contractor M/s Anurag Enterprises and setting aside all the penalties including the penalty where .....

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rvices within such SEZ, subject to the condition, namely, (i) the developer has been approved by the Board of Approval to develop, operate and maintain the SEZ; (ii) the unit of the SEZ has been approved by the developer Commissioner or, as the case may be, to establish the unit in the SEZ; (iii) the developer or unit of a SEZ shall maintain proper account of receipt and utilization of the said taxable service. The ld. A. R. further emphasizes that in absence of an approval from the Approval Com .....

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