TMI Blog2020 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... in the approved list of services issued by the office of the Development Commissioner which has been placed on record. Further, those services which are not specifically approved but the said services are used for authorized operation of the company, appellant still be eligible for the refund in view of the Section 26 and Section 51 of the SEZ Act. The matter is remanded to the original authority to verify the invoices allegedly not produced before the authorities earlier - Appeal allowed by way of remand. - Service Tax Appeal No. 20890 of 2019, 20891 of 2019, 20892 of 2019, 20893 of 2019, 20894 of 2019, 20895 of 2019, 20896 of 2019 - Final Order No. 20079-20085/2020 - Dated:- 31-1-2020 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Shri Harish Bindumadhavan, Advocate For the Appellant Smt. D.S. Sangeetha, Jt. Commissioner (AR) For the Respondent ORDER PER: S.S GARG Appellant has filed these 7 appeals against the common impugned order No.189-202/2019 dt. 19/06/2019 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has partly allowed the refund claims filed by the appellant and remanded the matter to the original authority for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) 58,738 Real Estate Service Services not covered in the default list of services (Para 18 of OIA) 3,319 Technical Testing Analysis Service Services not covered in the default list of services (Para 18 of OIA) 44,530 Professional Charges Services not covered in the default list of services (Para 18 of OIA) 11,296 Storage and warehouse services Services not covered in the default list of services (Para 18 of OIA) 24,720 Advertising Services Reasons not specified in the OIA 309 Clearing Forwarding Service Reasons not specified in the OIA 5,933 Consumer Testing Reasons not specified in the OIA 8,158 Convention Service Reasons not specified in the OIA 5,13,545 Maintenance of Repair Service Reasons not specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault list of services (Para 26 of the OIA) ST/20893/2019 October 2016 to December 2016 4,35,544 Business Auxiliary Services Services not received from the specified vendor as per the Development Commissioner s Approval letter (Para 26 of the OIA) 93,021 Management Consultants Service Services not received from the specified vendor as per the Development Commissioner s Approval letter (Para 26 of the OIA) 9,750 Club Association Service Not covered in the default list of services (Para 26 of the OIA) 4,060 Business Support Service Reasons not specified in the OIA ST/20894/2019 July 2016 to September 2016 9,48,968 Business Auxiliary Services Services not received from the specified vendor as per the Development Commissioner s Approval letter (Para 26 of the OIA) 1,08,515 Management Consultants Service Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 222/2019 dt. 28/02/2019] iii. Mangalore Refineries Petrochemicals Ltd.Vs. CCE CT, Mangalore Vs. [2019(2) TMI 588 CESTAT Bangalore] iv. State through CBI Vs. Parmeshwaran Subramani anr. [Order dt. 11/09/2009 in Criminal Appeal No.1758 of 2009] 4.2. As far as appeal No.ST/20891/2019, learned counsel submitted that with respect to import of services, refund has been rejected on the ground that the invoice copy was not made available. Learned counsel submitted that in fact this finding is also factually incorrect. The appellant has submitted the copy of invoice with the office of the Commissioner of Service Tax. Though the appellant has once again submitted the same along with copy of the challan, evidencing the payment of service tax on RCM basis. With respect to cargo handling service, the appellant submitted that the same is duly listed in Entry No.2 (services performed inside the zone) of letter dt. 20/03/2012. With respect to other services, the appellant submitted that the said services were used for authorized operation of the company and accordingly eligible for refund in view of Section 26 and Section 51 of the SEZ Act, 2005 cites supra. He relied upon the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to the assessee. He further submitted that the immunity provided from service tax paid cannot be taken away by the procedural requirement prescribed by Notification. For this submission, he relied upon the following decisions:- a) Mast Global Business Services India Pvt. Ltd. Vs. CCT, Bangalore [2018 (ACR) 369 CESTAT Bangalore] b) Lowes Services India Pvt. Ltd. Vs. CST, Bangalore [Final Order No.20219-20222/2019 dt. 28/02/2019] c) Mangalore Refineries Petrochemicals Ltd.Vs. CCE CT, Mangalore Vs. [2019(2) TMI 588 CESTAT Bangalore] d) State through CBI Vs. Parmeshwaran Subramani anr. [Order dt. 11/09/2009 in Criminal Appeal No.1758 of 2009] 4.5. He also cited the decision in the case of Photon Infotech Pvt. Ltd. Vs. CCE, Bangalore [2012 (12) TMI 1012 CESTAT Bangalore] wherein this Tribunal has held that non-inclusion of the services in the list of services approved by the Development Commissioner for authorized operations is just a procedural lapse which cannot be considered as a ground for rejection of refund claim. 5. On the other hand, the learned AR defended the impugned order. 6.1. After considering the submissions of both the parties and perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the appellant clearly hold that the SEZ Act has a overriding effect over other laws. Therefore this ground on the basis of which refund claims have been rejected is not tenable in law. 5.1. Further I find that in the case of Photon Infotech Pvt. Ltd. cited supra, this Tribunal has held in para 7 as under:- 7. After considering the grounds of appeals and written submissions, I find that the adjudicating authority has not disputed the fact of receipt of these services in the SEZ unit and the same are consumed by the appellant unit and further the issue is squarely covered in favour of the appellant by the decision in the case of Zydus Hospira Oncology Pvt. Ltd. Vs. CCE, Ahmedabad [2013(30) STR 487 (Tri. Ahmd.)]. Further I also find that non-inclusion of the services in the list of services approved by the Development Commissioner for authorised operations is just a procedural lapse which cannot be considered as a ground for rejection of refund claim. In view of my discussion above and the decision relied upon, the impugned orders are not sustainable and the same are set aside by allowing the appeals of the appellant with consequential reliefs, if any. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
