TMI Blog2023 (2) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... or notification cannot override the Act. Otherwise also the issue involved herein is no longer res integra in view of the decision of this Tribunal in the matter of M/S. EON KHARADI INFRASTRUCTURE PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE III [ 2015 (2) TMI 614 - CESTAT MUMBAI] in which the Tribunal on an identical issue while deciding in favour of assessee held that refund cannot be denied under the Act for procedural infraction of having paid the Service Tax which ought not to have been paid by the service provider. So far as the reliance placed by learned Authorised Representative in the matter of M/S. EVEREST INDUSTRIES LTD. VERSUS CCE, MEERUT - I [ 2013 (4) TMI 526 - CESTAT NEW DELHI] is concerned, it is found that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 6,83,442/- for the period from 15th December 2009 to 30th June 2010 for Service Tax paid on the specified service used in relation to the authorised operations in the SEZ under notification (supra). The adjudicating authority vide order-inoriginal dated 27.12.2010 sanctioned refund claim amounting to Rs. 4,88,315/- and rejected the claim for the amount of Rs. 1,95,127/-. Out of the total rejected claim, Rs. 187/- was on account of being not mentioned in the list of approved services, Rs. 3863/- pertaining to club and association services was rejected on the ground of no nexus with the export and Rs. 1,91,007/- was rejected on the ground that the input services were wholly consumed within SEZ which were unconditionally exempted from p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of Revenue supported the findings recorded in the impugned order and placed reliance on the decision of this Tribunal in the matter of Everest Industries Ltd. vs. CCE Meerut I 2013 (31) STR 189 (Tri-Del). 5. Heard rival submissions and perused the case records, synopsis/written submission and case laws placed on record by the respective sides. In order to appreciate the issue involved herein, it is better to peruse the notifications involved herein and the relevant extract of the same are reproduced hereunder:- Notification No. 9/2009-S.T. - ..hereby exempts the taxable services specified in clause (105) of section 65 of the said Finance Act, which are provided in relation to the authorised operations in a Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification cannot override the Act. Otherwise also the issue involved herein is no longer res integra in view of the decision of this Tribunal in the matter of EON Kharadi Infrastructure Pvt. Ltd. (supra) in which the Tribunal on an identical issue while deciding in favour of assessee held as under:- 4.1 I note that the SEZ Act, 2005, under Section 26(i)(e), provides that all services imported into the SEZ to carry on authorized operations in SEZ shall be exempted. Further Section 51 of this Act gives overriding effect over other Acts. This being the legal position, the condition of Notification No. 15/2009 that refund is only admissible to services which are not wholly consumed within the SEZ cannot nullify the overriding provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit through the pattern of first paying Service Tax in their unit outside of SEZ and then enabling the SEZ unit to take refund. I find that such practice cannot be held to be violating the legal framework under which recipient unit in SEZ cannot be made to suffer tax incidence. It was also argued by the learned AR that in the case of Everest Industries Ltd. [2013 (31) S.T.R. 189 (Tri.-Del.)], the Principal Bench had rejected the refund claims under similar set of facts. I find that the facts in that case are different. In that case the issue was refund of Cenvat credit under Rule 5 of Cenvat Credit Rules in respect of input services used in the manufacture of final products cleared for export. The Tribunal held that anybody other than SE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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