TMI Blog2021 (10) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, the appellant has filed the refund claims originally within a period of one year and therefore, the date on which the claims were re-submitted along with documents cannot be considered to be the date of filing claim so as to deny the refund on the ground of limitation - The Tribunal in the case of BALMER LAWRIE CO. LTD. VERSUS COMMISSIONER OF C. EX., KOLKATA-VI [ 2014 (8) TMI 977 - CESTAT KOLKATA] considered a similar issue and held that when the claim has been filed within the limitation period of one year and returned by the Department for removal of defects, the date of subsequent re-submission cannot be taken as the date on which the claim is filed afresh. This issue as to whether the terms and conditions prescribed in the Service Tax Notifications will prevail over Section 26 of the SEZ Act, 2005 read with Section 51 of the SEZ Act, 2005 was analysed by the Hon ble High Court of Telangana and Andhra Pradesh in the case of GMR AEROSPACE ENGINEERING LIMITED AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [ 2019 (8) TMI 748 - TELANGANA AND ANDHRA PRADESH HIGH COURT] . This Tribunal in the case of M/S. TVS LOGISTICS SERVICES LTD. VERSUS THE PRINCIPAL COMMISSIONE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices are not produced. We therefore cannot agree with this view taken by the authorities below. If the appellant produces proof of payment of Service Tax, the same should be considered - this issue is remanded to the Adjudicating Authority, who shall re-consider this issue after verifying the copies of the invoices/documents produced by the appellant. The appeals are partly allowed and partly remanded. - ST/41743-41744/2017-DB, ST/40404-40405/2018-DB, ST/40541-40552/2018-DB & ST/40658/2018-DB - FINAL ORDER NOs. 42377-42393 / 2021 - Dated:- 13-10-2021 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri R. Rajaram, Consultant for the Appellant Ms. Sridevi Taritla, Authorized Representative for the Respondent ORDER The appellant is engaged in providing Information Technology Software Services and holds Service Tax registration for such services as well as services in the nature of Management Maintenance and Repair Services, Business Support Services, etc. The appellant provides services from various premises situated at different locations across the country. They have set up units in Special Economic Zones (SEZ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) The credit availed on certain services are not eligible as these are not included in the specified list of services; and (iv) The original invoices have not been submitted. 3.1.1 With regard to the first ground, it is submitted by the Learned Consultant for the appellant that as per Clause 3(e) of Notification No. 12/2013-ST dated 01.07.2013 as amended, under which the refund has inter alia been claimed, the claim for refund shall be filed, within one year from the end of the month in which the actual payment of Service Tax was made by such developer or unit to the registered service provider or such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall permit. That though the one-year period is prescribed under Section 11B of the Central Excise Act, 1944 for claiming refund, in terms of the said Notification, the time-limit for filing the refund is not restricted to one-year alone and the same can be extended by the Assistant Commissioner. That this clause provides that the Officer can permit a claimant to file the claim beyond the stipulated period of one year; thus, there is no statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) G.S.T.L. 596 (A.P.). That the Tribunal in the case of M/s. ATC Tyres Pvt. Ltd. (supra) held that the provisions of the SEZ Act, 2005 would prevail over the conditions prescribed in the Notifications which are issued under Section 93 of the Finance Act, 1994. That for this reason also, the view taken by the authorities below that the refund is time-barred cannot sustain. 3.2. The second ground for rejection of the refund claims is that it is alleged by the Department that the Chartered Accountant certificate was not signed by the statutory auditor, who was engaged for the relevant period of the refund claims. The Learned Counsel for the appellant explained that the financial statements for the relevant years were signed by M/s. Lovelock and Lewes and the auditor certificate in this case was issued by M/s. Price Waterhouse Co. That M/s. Lovelock and Lewes and M/s. Price Waterhouse Co. are part of the same firm. As per Notification Nos. 17/2011-S.T. dated 01.03.2011 and Notification No. 40/2012 dated 20.06.2012, the appellant has to furnish the certificate of the statutory auditor of the SEZ unit/developer; that at the time of filing the applications for claiming refund, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l invoices, if at all, is only a procedural lapse when sufficient evidence of payment of Service Tax is produced. The substantive benefit cannot be denied for a procedural lapse. It is asserted by the Learned Counsel that the appellants have submitted the photocopies of all these invoices. Notification No. 17/2011-ST only mandates the proof of payment for the specified services used for authorized operations and the Service Tax paid, in original. The relevant part of the Notification is reproduced as under: 3. The following procedure should be adopted for claiming the benefit of the exemption contained in this notification, namely:- (f) (ii) invoice or a bill or as the case may be, a challan, issued in accordance with the provisions of Finance Act or rules made thereunder, in the name of the Developer or Unit of a SEZ, by the registered service provider, along with proof of payment for such specified services used for the authorised operations and service tax paid, in original 3.4.3 It is argued by the Learned Consultant for the appellant that once it is established beyond doubt that the services are provided to the SEZ unit, then substantive benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Oct 2012 116/2016 (P) dt. 14.11.2016 31.10.13 31.10.13 08.11.13 C.No.IV/16 /704/2013 LTG, VI dt.08.11.13 798 3. Aug 2012 111/2016 (P) dt. 14.10.2016 31.08.13 30.08.13 06.09.13 C.No.IV/16 /6/2013 LTG, VI dt.06.09.13 859 4. Sep 2012 113/2016 (P) dt. 31.11.2016 30.09.13 30.09.13 08.10.13 C.No.IV/16 /495/2013 LTG, VI dt.08.10.13 829 5. July 2012 116/2016 (P) dt. 31.07.13 31.07.13 08.08.13 C.No.IV/16 /482/2013 890 ST/ 40541- 40552/ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted only after a lapse of many months. That even on resubmission of the refund claims, they were not supported by necessary documents, as prescribed in paragraph 3(f) of the Notification. That the appellant has not furnished any reasons for the delay in re-submission of the refund claims. 4.3 She referred to paragraph 2.4 of the CBEC s Excise Manual of Supplementary Instructions, 2005 to argue that the claim can be processed only if the necessary documents are filed along with the claim for refund. Since the claims were not supported by requisite documents, they were returned within the time-limit of 15 days, as prescribed in paragraph 3.2 of the CBEC s Excise Manual of Supplementary Instructions, 2005 4.4 She relied upon the decision in M/s. KLA India Public Ltd. v. Commissioner of Central Excise, Meerut-I reported in 2016 (41) S.T.R. 511 (Tri. Del.) and argued that the Tribunal has held that the time-limit is to be computed only with reference to the date on which the refund claim is submitted after removing defects and not with reference to the date on which the claim was originally submitted. 5. Heard both sides. 6.1 The first issue is that the refund claims ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents. The Deficiency Memo dated 10.07.2013 reads as under: Please refer to your letter CTS/LTU/028/2013/GK dated 28th June, 2013 under which a refund claim for ₹ 91,96,902/- has been filed in terms of Notification No. 17/2011-ST dated 01-03-2011 claiming refund of service tax paid on the services used in the authorised operations of SEZ. Preliminary scrutiny of refund is done and it is noticed that the following documents were not filed along with the claim. (i) Original input service documents required under the Notification. (ii) Documentary proof of payment of service tax. In view of the above, the refund claim is returned herewith. (Emphasis in original) 6.2.2 It can be seen from the above Deficiency Memo that the refund claim is returned to the appellant. There is no decision on merits; there is no application of mind or a speaking order rejecting the claim. The Learned Authorized Representative for the respondent has referred to the CBEC s Excise Manual of Supplementary Instructions, 2005 to argue that if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reject the rebate claims on the ground of limitation alleging that the claims had been filed only on 23.12.2008 which is beyond the period of one year as prescribed in Section 11B of the Central Excise Act, 1944. The Hon ble High Court held that in view of the fact that the rebate claim scheme has been introduced as a beneficial scheme to encourage exports, it has to be construed in a liberal manner and the relevant date for calculating the period of limitation should be taken as 05.11.2007, when the claims were originally presented. 6.5.1 It would also not be out of place to mention the Circular No. 1063/2/2018-CX dated 16.02.2018 issued by the Central Board of Excise and Customs (CBEC) with regard to the acceptance of the Orders of higher fora, namely, the Supreme Court, High Courts and the CESTAT: Sub: Orders of Supreme Court, High Courts and CESTAT accepted by the Department and on which no review petitions, SLPs have been filed reg. . . . 4. Decision of the Hon ble High Court of Gujarat dated 17.12.2015 in the matter of Apar Industries (Polymer Division) vs Union of India in Special Civil Application No. 7815 of 2014 [2015-TIOL-2859-HC- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Tariff Act, 1985 (5 of 1986) or any other law for the time being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) drawback or such other benefits as may be admissible from time to time on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer or Unit to carry on the authorised operations in a Special Economic Zone; (f) exemption from the securities transaction tax leviable under section 98 of the Finance (No. 2) Act, 2004 (23 of 2004) in case the taxable securities transactions are entered into by a non-resident through the International Financial Services Centre; (g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers under the Central Sales Tax Act, 1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Company Affairs (Department of Revenue), No. 17/2002-Service Tax, dated the 21st November, 2002, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated the 21st November, 2002, vide, G.S.R. 777(E), dated the 21st November, 2002, except as respects things done or omitted to be done before such supersession, the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts taxable service of any description as defined in clause (90) of sub-section (1) of section 65 of the said Act provided to a developer of Special Economic Zone or a unit (including a unit under construction) of Special Economic Zone by any service provider for consumption of the services within such Special Economic Zone, from the whole of service tax leviable thereon under section 66 of the said Act , subject to the following conditions, namely :- (i) the developer has been approved by the Board of Approvals to develop, operate and maintain the Special Economic Zone; (ii) the unit of the Special Economic Zone has been approved by the Development Commissioner or Board of Approvals, as the case may be, to establish the unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be against the provisions laid down in the SEZ Act. 6.6.7 The Tribunal in the case of M/s. DLF Assets Pvt. Ltd. (supra) has held as under: 17. The Notification dated March 3, 2009 has been issued in exercise of the powers conferred by section 93 (1) of the Finance Act. It is for this reason that it has been contended by learned Counsel for the appellant that the said Notification dated March 3, 2009 would not have any relevance to the case of the appellant when it sought exemption from payment of service tax under the provisions of section 26(1)(e) of the SEZ Act read with rule 31 of the SEZ Rules. 18. The contention advanced by the learned Counsel for the appellant has force. As noticed above, section 26(1) of the SEZ Act provides that subject to the provisions of the sub-section (2), every Developer shall be entitled to exemptions and the exemption at (e) exempts every Developer from service tax under Chapter-V of the Finance Act on taxable services provided to a Developer or unit to carry on the authorized operations in a SEZ. Section 51 of the SEZ Act provides for an overriding effect to the provisions of the SEZ Act. The provisions of section 26 read with rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has explained that the auditor s certificate has been issued by M/s. Price Waterhouse Co. who were engaged at the time of filing the applications for claiming refund, who were the statutory auditors at that point of time. 7.2 When the statutory auditor has given the certificate, we do not find any error so as to deny the refund on the allegation of the certificate not being issued by the proper person as required in the Notification. The rejection of refund claims on this ground is set aside. 8. The third issue on which the refund has been rejected is that the services are not used for authorized operations. When the services have been approved for authorized operations by the authority competent to do so, then the Department cannot deny the refund stating that it does not appear that the services are used for authorized operations. The view taken by the authorities below to deny the refund is not supported by any cogent reasons. We therefore hold that the rejection of refund on this ground is not justified. The rejection of refund on this ground is set aside. 9. The fourth issue is with regard to the non-submission of original invoices. The relevant condition in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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