TMI Blog2018 (8) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... wever as per the first para of the notification all the services provided in relation to authorized operations in a SEZ and received by SEZ unit are exempted therefore the services received by the appellant even though consumed wholly within the SEZ are exempted per se. The impugned order is set aside - appeal allowed - decided in favor of appellant. - Appeal No. ST/560/2010-DB - Final Order No. A/ 11757 /2018 - Dated:- 17-8-2018 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) And HON BLE MR. RAJU, MEMBER (TECHNICAL) For the Appellant : Mr. Dhaval Shah ( Advocate ) For the Respondent : Mrs Nitina Nagori ( AR ) ORDER Per: Ramesh Nair The issue involved in the present case is that whether the appellant is entitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the submission made by both the sides and perusal of records, we find that the issue being of refund of service tax paid on input service received by the SEZ Unit is no longer res-integra in the light of various judgments passed by this Tribunal. In the case of Sears IT Management Services (I) Pvt. Ltd. (supra) this Tribunal has passed the following judgment: The fact of the case is that the appellant is SEZ unit they received certain services in their SEZ on payment of Service Tax. They filed refund claim in respect of such input service under Notification No. 9/2009-ST as amended by Notification No. 15/2009-ST dated 20.05.2009. The adjudicating authority sanctioned the refunded claim partly and major amount of refund was eject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible even if not under Notification No. 9/2009-ST. under Section 11B of the Central Excise Act. He placed reliance on the following judgments: (i) Zydus Tech. Ltd V. CST, Ahmedabad-2013 (30) STR 616 (TrI.-Ahmd) (ii) Zydus Hospira Oncology Pvt. Ltd. V CCE., Ahmedabad-2013 (30) STR 483 (Tri.-Ahmd) (iii) Tata Consultancy Services Ltd. V. CCE ST (LTU) Mumbai-2013 (29) STR 393 (Tri. Mumbai) (iv) Intas Pharma Ltd V. CST, Ahmedabad -2013 (32) ST 543 (Tri.Ahmedabad) (v) CST. Vs. Zydus Technologies Ltd.-2014 (35) STR 515 (Guj) (Vi) Zydus Tchnologies Ltd. Vs. CST.,Ahmedabad-2015 (39) STR 657 (Tri. Ahmd) (vii) Mahindra Engineering Service Ltd Vs. CCE .,Pune-l-2015 (38) STR 841 (Tri.Mum) (Viii) Barclays Tchno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Economic Zone except for services consumed wholly within the Special Economic Zone . From the plain reading of the aforesaid clause of the Notification No. 9/2009-ST., it is clear that the exemption by way of refund is not available to the services consumed wholly within the Special Economic Zone however as per the first Para of the notification all the services provided in relation to authorized operations in a SEZ and received by SEZ unit are exempted therefore the services received by the appellant even though consumed wholly within the SEZ are exempted per se. However the refund in respect of Serviced Tax paid on such services is not governed by Notification No. 9/2009-ST but the services tax otherwise not required to be pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable under Section 7 of the 2005 Act. However, Section 26(1)(e) enacts that subject to the provisions of sub-section (2) thereof, every developer and entrepreneur shall be entitled to exemption from Service Tax under Chapter (V) of the Act on taxable services provided to a developer or unit to carry on the authorised operations in a SEZ. 8. In view of the legislated exemption supra and since provisions of the 2005 Act are provided an overriding effect vide Section 51; and absent any provision in the Act which eclipses the overarching trajectory of the 2005 Act, the immunity to Service Tax in respect of taxable services provided in relation to SEZ is a legislatively enjoined immunity. Therefore, any Service Tax paid/remitted by a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the conclusion appears compelling that neither Notification 9/2009 nor 15/2009 disentitle immunity to Service Tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalised. Notification Nos. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of Service Tax, remitted by taxable service providers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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