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TMI Blog2022 (1) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... aipur) ('Mahindra'). As per the lease agreement between the two parties, Mahindra gave land on lease to Global Stones for a period of 90 years. In lieu of this, Global Stones paid an amount of Rs. 8,44,86,780/- as 'lease premium' against invoice dated 31.03.2017. On such amount, service tax of Rs. 1,26,73,017/- was paid under the category of 'renting of immovable property' service. (emphasis supplied). 4. It is urged that the impugned OIA has allowed the refund claim of Global Stones on merits, albeit has directed that the refund should be sanctioned proportionately in each quarter. As per the OIA, there is a possibility that Global Stones may not operate the SEZ unit for 90 years and therefore the refund cannot be sanctioned on a one-time basis, even though service tax was paid on the entire amount of lease premium in one go. 5. Further, it is submitted that vide appeal No. ST/51291/2019, the Department has also filed appeal to the extent of such apportionment of refund. As per the Department, there is no provision under the Finance Act, 1994 or under the SEZ Refund Notification which allows the claim of refund of an assessee for a certain period of time, to be disbursed on qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made for each quarter. Yes, only one claim filed by Global Stones, also confirmed in the OIA. 11. Further urges, as can be seen above, all the requirements under the SEZ Refund Notification have been followed by Global Stones. It is submitted that the SEZ Refund Notification does not contemplate any manner in which a single refund claim has to be apportioned. The allocation of refund on quarterly basis, when otherwise a single claim has been filed, is beyond the provisions of the SEZ Refund Notification. 12. Hence, it is submitted that such splitting of the refund claim is improper. 13. In this regard, learned Counsel places reliance on the case of State of Uttar Pradesh vs. Singhara Singh, AIR 1964 SC 358 wherein it has been held that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. Hence, if a particular manner of sanctioning refund has been prescribed under the SEZ Refund Notification, then no other procedure can be adopted by the Department. 14. For this purpose, reliance is placed on the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmedabad -2013 (7) TMI 703 -CESTAT Ahmedabad. iv) Reliance Ports & Terminals Ltd. v. CCE & ST, 2013-TIOL-1473-CESTAT-AHM v) SE Forge Ltd. Vs. CCE, Coimbatore -2018 (6) TMI 661-CESTAT Chennai. 22. In addition and without prejudice to the above, it is submitted that the amount paid by Global Stones to Mahindra as lease premium was not susceptible to service tax. For this reason also, refund is sanctionable to Global Stones as service tax was paid by Global Stones and collected by the Department without authority of law. 23. It is submitted that the 'Lease Premium' amount paid by Global Stoneswas in the nature of 'premium'/'salami' which was not taxable as consideration towards renting service. The word 'Premium' as provided under Section 105 of the Transfer of Property Act, 1882, has been interpreted by various judicial forums as a 'price paid for obtaining the lease'. Hence, it precedes the grant of lease, and therefore, it cannot be equated with the rent which is paid periodically. 24. In this regard, it is submitted that this Tribunal, in the case of M/s Greater Noida Industrial Development Authority v. CCE & ST Noida, 2015 (38) STR 1062 (Tri - Del), has held that 'premium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not used towards authorised operations. Moreover, the service tax has been paid on the land lease charge not on Renting of Immovable Proper Service. The lease charge is not covered under specified service for refund under the notification. (iv) The appellant also stated that, the lease premium charges are considered by Mahindra World City as leasing/ renting services and accordingly service tax has been paid. Further, land is nothing but an immovable property. Therefore, service tax has been paid for leasing charges of land which is nothing but renting of immovable property. (v) It is further urged that the appellant has claimed the refund for the entire lease period instead of quarterly basis, which is not admissible in terms of para (III) (f) of Notification No. 12/2013-ST. Further, lease premium is not a specified service and there is no reason as to how it was used for authorised operation. Further, the refund claim for service tax paid on lease charges/ premium, which was a onetime payment made at the time of executing the agreement, is different from annual or on monthly rent. (vi) It is further urged that the refund claim have been filed quarterly, whereas the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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