TMI Blog2019 (7) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... nents with compliance of the latter not a condition enumerated in the former - the substantive compliance of the latter will not in any way dilute the several decisions on strict compliance. Debit notes are frequently used in commercial transactions especially when the contractual arrangements are spread over longer periods and adjustments between the two parties are occasioned at regular intervals. Mere non-enumeration in rule 4A of Service Tax Rules, 1994, or within the procedure of the notification, will not detract from the entitlement to be sanctioned with the refund. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 90154 of 2014 - FINAL ORDER NO. A/87589/2019 - Dated:- 12-7-2019 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Mehul Jiwani, Chartered Accountant for the appellant Shri Dilip Shinde, Assistant Commissioner (AR) for the respondent ORDER This appeal of M/s Manjari Stud Farm Pvt Ltd, against order-in-appeal no. PUN-EXCUS-003-APP-070-14-15 dated 17th September 2014 of Commissioner of Central Excise (Appeals), Pune-III, disputes the upholding of the rejection of claim of ₹ 1,26,94,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise, Nagpur [2018 (10) GSTL 248 (Tri-Mumbai)]. 4. Learned Authorised Representative contends that the impugned order cannot be faulted as the operational notification no. 40/2012-ST dated 20th June 2012 specifies in paragraph 3 (f) that the claim should be supported with bill or invoice or challan and further states that rule 4A of Service Tax Rules, 1994 prescribes invoice for rendering of services. Citing the decision of the Hon ble High Court of Jharkhand in Manpreet Engineering Construction Co v. Union of India [2016 (44) STR 384 (Jhar)] and, in particular, on (III) It appears on perusal of VCES, 2013 that the clauses of the Scheme are drafted very clearly and they are bereft of any ambiguity. What is to be paid that has already been mentioned in Section 107. We cannot replace all these sections. In a taxing statue interpretation ought to be made strictly. Court can neither replace all these clauses of VCES, 2013 nor further instalments can be given by the court in exercise of powers under Article 226 of the Constitution of the India. The so called theory argued by the counsel for the petitioner, viz. 'substantial compliance' has no place in a taxing statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministration to assist in implementation of the scheme. At best, objections may be raised to protect the interest of revenue but not at the cost of statutory entitlement and, in the absence of any evidence of ineligibility, there is no conflict with interest of revenue insofar as the claim for refund is concerned. The observation of the Tribunal in re Wardha Power Company Ltd that 8. The items that were subject matter of the scrutiny by the Authority below were as stated aforesaid by the appellant and covered by paras 5.12 to 5.16 of the show cause notice at pages 63 to 65 of the appeal record. The services stated in para 5.1 has been disallowed on the ground that evidence was not produced. Appellant s grievance was that the services having been utilized in the SEZ and materials are borne by record to this effect, the burden of proof is on the person, who alleges, to bring out a case for defence of the other side. In absence of proper enquiry being conducted to bring out that the service was not utilized or the evidence adduced was insufficient nor there was any evidence, it is not possible to be appreciated that the appellant was disentitled to the benefit of refund. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be available to a developer or a unit for the authorised operations in a Special Economic Zone. 7. On perusal of the provisions contained in Section 26(2) of the Act read with Rule 31 of the Rules, it reveals that such statutory provisions have not prescribed any conditions/stipulations for grant of refund of service tax paid on the taxable services for providing SEZ activities. However, in exercise of the powers conferred by sub section (1) of Section 93 of the Finance Act, 1994, the Central Government has issued Notification No. 9/2009-ST dated 3.3.2009 and the amending Notification No. 15/2009-ST dated 20.5.2009, by providing certain conditions for claim of refund by the SEZ unit/developer. Since the SEZ Act and the rules have not provided any conditions for granting exemption from payment of service tax, the Central Government cannot issue the notification under a different statute i.e. Finance Act, 1994 in providing the conditions for grant of refund of service tax paid on the taxable services used for the authorised operations in the SEZ. Further, by virtue of Section 51 of the SEZ Act, the provisions of the said Act and the Rules made there under are mandated to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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