TMI Blog2020 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... vide a time limit for grant of refund to the SEZ unit and developer. Accordingly, impugned orders are set aside and appeals are allowed. The adjudicating authority are directed to grant the refund within a period of 45 days from the date of receipt of this order alongwith interest - appeal allowed. - Service Tax Appeal No. 52078 of 2018-SM, Service Tax Appeal No. 52079 of 2018-SM, AND Service Tax Appeal No. 52080 of 2018-SM - FINAL ORDER Nos. 50645 – 50647/2020 - Dated:- 26-2-2020 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) APPEARANCE: Shri Krishna Mohan Menon Ms. Parul Sachdeva, Advocates for the appellant Shri Y. Singh, Authorised Representative for the respondent ANIL CHOUDHARY: The issue in these appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax on the specified services that are not exclusively used for authorised operation or the specified services on which ab initio exemption is admissible but not claimed, shall be allowed subject to procedure and condition prescribed. Further, in clause 3(iii) provides that refund claim shall be filed within one year from the end of the month in which actual payment of service tax was made by such developer or SEZ unit to the registered service provider or such extended period as the Assistant Commissioner of Central Excise shall permit. 5. Admittedly, the appellant is a SEZ developer and they have received the specified services and paid service tax to the service provider who are registered with the Service Tax Department. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smiss the appeals. Being aggrieved, the appellant is before this Tribunal. 8. Learned Counsel appearing for the appellant urges that ab initio exemption is available to the appellant-assessee from payment of service tax under Section 26(1)(e) read with Section 51 of the SEZ Act, 2005 read with Rule 31 of SEZ Rules, 2006. This rule provides exemption, is available to a SEZ unit/ developer with respect of services authorised, by developer without any restriction. Section 26 provides exemption from payment of service tax and Section 51 provides for overriding effect of the SEZ provisions over other statutes, including the provisions of service tax. 9. Thus, the issue which arises for consideration is whether the notification under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xes/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 specified 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 subsection (2) thereof, every developer and entrepreneur shall be entitled to exemption from Service Tax under Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 9/2009-S.T. was substituted. The current requirement is that the exemption claimed by the developer or units of SEZ shall be provided by way of refund of Service Tax paid on the specified services used in relation to the authorised operations in the SEZ, except for services consumed wholly within the SEZ. 11. On true and fair construction of Notifications 9/2009 and 15/2009 issued under Section 93(1) of the Act, considered in the light 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 15/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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