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2018 (4) TMI 672

s contained in Section 26(1)(e) of the SEZ Act, read with Rule 30(10) of the SEZ Rules, 2006, it can be seen that no service tax is payable on the services provided by a service provided to a SEZ unit. Further, Sec. 51 of the SEZ Act also makes an over-riding provision that SEZ Act shall have effect even if there is anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any other law. - N/N. 9/2009-S.T. and amended N/N. 15/2009-S.T. have been only issued to operationalize the exemption/ immunity available to SEZ unit under Sec. 26(1)(e) of the SEZ Act, 2005 and cannot bar the refund claim to the Appellant. - The refund of service tax sought by Appellant cannot be .....

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n terms of Notification No. 9/2009 ST dt 03.032009 as amended by Notification No. 15/2009 - ST. In order to get the refund the units located in SEZ has to get the list of services approved from the Development Commissioner of the SEZ. The Appellant applied for approval to the approval committee on 03.07.2009. They also filed refund application for refund of service tax of ₹ 35,30,495/- charged to them on services received by them in their Unit for the period July' 2009 to September' 2009 on 2502.2010. They filed another refund claim for ₹ 29,87,613/- for service received by them during the period April'09 to June' 09 on 31.12.2009. They were issued show cause notices proposing to reject the claim on the ground th .....

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(SC). He submits that the proposal in the show cause notice was to reject the refund claim on the ground that the services were not approved by the Approval committee at the time for which refund is being sought. There was no allegation in the show cause notice that the input services are allegedly consumed wholly within the SEZ and hence not liable to refund. He submits that in terms of Section 7 of the SEZ Act, 2005 any goods or services exported out of or imported into or procured from Domestic Tariff Area (DTA) by unit in the SEZ or the developer of the SEZ shall be exempt from payment of taxes, duties or cesses under all enactments specified in the Schedule, subject to terms and conditions specified. He also submits that in terms of se .....

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om the provisions contained in Section 26(1)(e) of the SEZ Act, read with Rule 30(10) of the SEZ Rules, 2006, it can be seen that no service tax is payable on the services provided by a service provided to a SEZ unit. Further, Sec. 51 of the SEZ Act also makes an over-riding provision that SEZ Act shall have effect even if there is anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any other law. We are therefore of the view that Notification No. 9/2009-S.T. and amended Notification No. 15/2009-S.T. have been only issued to operationalize the exemption/ immunity available to SEZ unit under Sec. 26(1)(e) of the SEZ Act, 2005 and cannot bar the refund claim to the Appel .....

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no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitled for refund of the service tax paid under the provisions of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. If the appellant is eligible for refund under Section 11B, then the same cannot be denied on the ground that the claim was made under Notification No. 9/2009-S.T. In this case, there is no dispute that the services were provided in relation to the authorized operations of the appellant within the SEZ. From the records it is seen that the appellant has filed the refund claim within the time period provide .....

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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 collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/ sub-paragraph 'c' of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the provid .....

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