TMI Blog2019 (3) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was rightly entitled for the refund - appeal dismissed - decided against Revenue. - Appeal No. E/895/2011-DB - A/10424/2019 - Dated:- 27-2-2019 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) For the appellant: Shri S.N. Gohil, Supdt. (AR) For the respondent: Shri Dhawal Shah, AR ORDER Per: Ramesh Nair The facts of the case, in brief, are that the appellants are developer of Special Economic Zone and have filed a refund claim on 26.06.2009 amounting to ₹ 12,93,079/- for the period March 2009 to may 2009 with Central Excise Division Bharuch in terms of Notification No. 09/2009-ST dated 03.03.2009 as amended by Notification No. 15/2009-ST dated 20.05.2009. The SCN dated 17.09.2009 was issued proposing rejection of refund claim amounting to ₹ 12,93,079/- under Section 11B of the Central Excise Act, 1944 on the ground that the appellant have not fulfilled the provisions of Notification No. 09/2009-ST dated 03.03.2009 as amended by Notification No. 15/2009-ST dated 20.05.2009 in as much as the appellants have not produced the evidences envisaging duty payment of service tax and required evidences documents in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmedabad 6. 2018 (9) TMI 653-CESTAT Ahmedabad Intas Pharma Ltd. vs. CST, Ahmedabad 7. 2017 (9) TMI 888-CESTAT Mumbai Sears IT Management Service (I) Pvt. Ltd. Vs. CCE, Pune-III 8. 2018 (4) TMI 672-CESTAT Mumbai Eaton Tech Pvt. Ltd. Vs. CCE, Pune-III 9. 2019 (2) TMI 1178-CESTAT Chennai ATC Tires (p) Ltd. vs. CCE ST Tirunelveli 4. We have carefully considered the submission made by both the sides and perused the records. We find that the only ground made by the Revenue in this appeal is that the Ld. Commissioner. while allowing the appeal has not seen that the condition 1(c) of notification no. 09/2009-ST dated 03/03/2009 was not complied with. We find that since the service was wholly consumed within SEZ, the appellant is otherwise entitled for the refund. It is also observed that as regard the condition and documents, the Ld. Commissioner has given a categorical finding. Therefore, we do not find any infirmity in the order. On the identical facts, this tribunal has taken view in the case of Zydus BSV Pharma Pvt. Ltd. Vs. CST Ahmedabad (supra) wherein following order was passed: 4. On careful consideration of the submission made by both the sides and perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. CS7 Ahmedabad -2013 (32) ST 543 (Tni. Ahmedabad) (v) CST Vs. Zydus Technologies Ltd. -2014 (35) STR 515 (Guj) (vi) Zydus Technologies Ltd. Vs. CS7, Ahmedabad-2015 (39) STR 657 (Td. Atimd) (vii) Mahindra Engineering Service Ltd Vs. CCE., Pune-l-2015 (36) STR 841 (Tri-Mum) (viii) Barclays Technology Centre India (P) Ltd. Vs. CCE., Pune-III (Tri-Mum) (ix) Eon Kharadi Infrastructure Pvt Ltd V. -CCE., Pune-III 2015 (39) STR 267 (Tri. Mum) (x) Zydus Mayno Oncology Pvt. Ltd. Vs. CCE Cus., Vapl-2010 (262) ELT 280 (Tri,-Ahmed) (xi) Credit Suisse Services India Pvt. Ltd Vs. CCE, Pune-i.2013-TIOL-1998-CESTAT-MUM. 3. Shri Dilip Shinde, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that the appellant have admittedly claimed the refund under Notification No. 9/2009-ST as amended by Notification No. 15/2009-ST The Services in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice that the Special Economic Zones Act, 2005 (Central Act 28 of 2005) was enacted providing for SEZ within the territory of India and for providing inter alia immunities/exemptions from taxes/duties/cesses. Section 7 Of the 2005 Act enjoins that any goods or services exported outside, or imported into, or procured from the domestic tariff area, by a. unit in SEZ or a developer shall, subject to such terms and Conditions and limitations, as may be prescribed be exempted from payment of taxes/duties/cesses under all enactments pacified in the First Schedule. The First Schedule does not enumerate the Act (Finance Act 1994) as among the enactments in respect of which exemption from taxes/duties or cesses Is available under Section 7 of the 2005 Act. However, Section 26(1)(e) enacts that subject to the provisions of sub-section (2) thereof, event 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 authorized 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 providers of such services. 12. Therefore, the rejection of the appellant s claim by the adjudicating authority and affirmation of such rejection by the Commissioner (Appeals), to the extent of ₹ 56,650/-, in relation to Architect, Interior Decorators and Consulting Engineer, services provided by M/s. Venkataramanan Associates, is unsustainable and is so decl ..... 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