TMI Blog2019 (8) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... e original authority has rejected the refund claims on entirely new grounds which were not in the show-cause notice. In view of the settled law that the Revenue cannot travel beyond the show-cause notice - the impugned order has travelled beyond the show-cause notice and therefore not sustainable. The impugned order services though have been classified under BAS and Management Consultancy Services but in fact some of them are specifically mentioned in the approval list of services and are in the nature of BSS which have been availed in order to provide output services. Further as per Section 26 of the SEZ Act, a unit in the SEZ is exempt from payment of service tax under Chapter V of the Act on any taxable service provided to such uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the conditions stated therein, exempted the taxable services chargeable to tax under Section 66B of the Finance Act, 1994 received by a unit located in a SEZ or Developer of SEZ for the authorized operations, from the whole of the service tax, education cess and secondary and higher education cess leviable thereon. The said exemption was provided by way of refund of service tax paid with an option to claim upfront exemption for the authorized services wholly consumed in the SEZ. Under the said Notification, appellant filed 11 refund claims. Thereafter 11 showcause notices were issued to the appellant as to why the refund claims should not be rejected on the ground of non-submission of documents like original invoice, FIRC copy, Letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October - December 2016 67,774 388/2018 January - March 2017 54,735 88/2019 389/2018 April - June 2017 61,903 98/2019 383/2018 July - September 2016 94,095 Total 7,13,489 Aggrieved by the order, appellant filed these 11 appeals. 3. Heard both sides and perused the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Nagpur [2007(215) ELT 489 (SC)} ii. CCE, Bangalore Vs. Brindavan Bevarages Ltd. [2007(213) ELT 487 (SC)] 4.2. She further submitted that before the Commissioner(Appeals), the appellant has filed all these decisions but the same were not considered and no reasoning was given for non consideration of the same. Learned counsel further submitted that non-inclusion of a particular service in the approved list by itself cannot be a ground to deny the refund if there are evidences available to substantiate that the said services were used in the authorized operations in the SEZ. For this, She relied upon the following decisions:- i. Makers Mart Vs. CCE ST, Jaipur-II [2016(43) STR 309 (Tri. Del.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following decisions:- i. Kolland Developers Pvt. Ltd. Vs. CCE, Nagpur [2016(44) STR 65 (Tri. Mumbai)] ii. Mahindra World City Ltd. Vs. CCE, Jaipur-I [2013(32) STR 93 (Tri. Del.)] iii. Metro Global Business Services Pvt. Ltd. Vs. CCE, Pune-III [2016(42) STR 489 (Tri. Mumbai)] 6. After considering the submissions of both sides and perusal of the material on record, I find that all the show-cause notices have been issued only on the ground of non-submission of documents mentioned therein and in the show-cause notices, there is no allegation that the impugned services do not incorporate in the approved list of services by Deputy Commissioner. Further in the Order-in-Original, , t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the overarching provisions of Sections 7 and 26(e) of the 2005 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 Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
