TMI Blog2023 (10) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... pulate that all provisions relates to refund of service tax under Finance Act, 1994 shall be applicable to refund of SBC KKC. Therefore, the said provisions were not taken into consideration by the authorities below. SBC has been levied as Service Tax only as has been stated to in Section 119(2) of the Finance Act, 2015 and the rate of SBC @ 2% of value of taxable services proposed under the Finance Act, 2015 has been reduced to @ 0.5% of value of taxable services vide Notification issued under Section 93(1) of the Finance Act, 1994 which enables Central Government to grant exemption from Service Tax. Therefore, SBC has been given status of Service Tax levied under the Finance Act, 1994 for the purpose of refund/rebate. Notification No.12/2013-ST dated 01.07.2013 also had specifically provided refund of service tax leviable under Section 66B of the Finance Act, 1994 whereas SBC KKC have been levied under section 119 of the Act inserted vide Finance Act, 2015 and Section 161 of the Act inserted vide Finance Act, 2016, respectively, hence there was legal requirement to amend NotificationNo.12/2013-ST vide Notification No.2/2016-ST and Notification NO.30/2016-ST dated 26.05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollection of SBC. As per the said provision which relates to refund on exemption from tax, interest and imposition of penalty shall be as far as may be applied in relation to levy and collection of SBC on taxable services under Chapter V of the Finance Act, 1994 or the Rules made thereunder, as the case may be and as per Section 161 of Finance Act, 2016 the same provision was brought in as KKC. 5. It is his submission that the SBC KKC are to be collected by the provider as Service Tax and it is further submitted that during 2016-17 various services were used by the appellant for export of goods and paid Service Tax thereon and thereafter claimed refund of tax under Notification No.41/2012-ST dated 29.06.2012. While claiming refund of Service Tax, SBC as well as KKC was also included in the refund since they were paid as Service Tax in terms of the law. But, the department failed to refund the SBC and KKC on the plea that nothing specific has been stated in the Notification about SBC and KKC to be refunded without disputing that the they are paid as Service Tax under the statute. 6. It is his submission that under section 119 of the Finance Act, 2015 and section 161 of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t legislation for different purpose cannot be said to have been exempted, therefore, the appellant is not entitled for refund of SBC and KKC. 9. Heard the parties, considered the submissions. 10. The revenue has heavily relied on the decision of the Hon ble Apex Court in the case of Unicorn Industries v. Union of India (supra). In the said case, the issue before the Hon ble Apex Court is with regard to refund of National Calamity Contingent Duty, Education Cess and Higher Education Cess and the refund were to be entertained in terms of Notification No.71/2003-CE dated 09.09.2003. The said Notification grants Area Based Exemption for North-Eastern States and the said exemption does not deal the situation of export of goods, whereas Notification No.41/2012-CE dated 29.06.2012 deals with a situation where the assessee is entitled to claim the refund of duty and Service Tax on export of goods on inputs/service received by the appellant for export of goods is entitled for refund. Therefore, the said decision is not applicable to the facts of the present case. 11. Now dealing with the case in hand, we find that Notification No.41/2012-ST is clearly stating grant of refund of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There shall be levied and collected in accordance with the provisions of this Chapter, a cess to be called the Swachh Bharat Cess, as service tax on all or any of the taxable services at the rate of two per cent. on the value of such services for the purposes of financing and promoting Swachh Bharat initiatives or for any other purpose relating thereto. (3) The Swachh Bharat Cess leviable under sub-section (2) shall be in addition to any cess or service tax leviable on such taxable services under Chapter V of the Finance Act, 1994 (32 of 1994), or under any other law for the time being in force. (4) The proceeds of the Swachh Bharat Cess levied under sub-section (2) shall first be credited to the Consolidated Fund of India and the Central Government may, after due appropriation made by Parliament by law in this behalf, utilise such sums of money of the Swachh Bharat Cess for such purposes specified in sub-section (2), as it may consider necessary. (5) The provisions of Chapter V of the Finance Act, 1994 and the rules made thereunder, including those relating to refunds and exemptions from tax, interest and imposition of penalty shall, as far as may be, apply in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of Service Tax under Finance Act, 1994 shall apply to refund of SBC; and Section 161 of Finance Act, 2016 levied KKC on taxable services and Section 161(2) specifies KKC as Service Tax and Section 16 (5) specifies that the provisions of refund of Service Tax under Finance Act, 1994 shall apply to refund of KKC. 17. We also find that Section 119(1) of the Finance Act, 2015 stipulated that SBC shall be levied from the date as notified by the Central Government and the Central Government issued Notification No.22/2015-ST dated 06.11.2015 under Section 93(1) of the Act and fixed rate of SBC @ 0.5% of the value of taxable services. 18. It is very clear that SBC has been levied as Service Tax only as has been stated to in Section 119(2) of the Finance Act, 2015 and the rate of SBC @ 2% of value of taxable services proposed under the Finance Act, 2015 has been reduced to @ 0.5% of value of taxable services vide Notification issued under Section 93(1) of the Finance Act, 1994 which enables Central Government to grant exemption from Service Tax. Therefore, we are of the considered view that SBC has been given status of Service Tax levied under the Finance Act, 1994 for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 66 or section 66B of the Finance Act, 1994 (32 of 1994); (b) education cess on taxable service levied under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (c) Secondary and Higher Education Cess on taxable services levied under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007). 24. Therefore, there was need to add SBC KKC as clause (d) and clause (e) vide Notification No.3/2016-ST dated 03.02.2016 and Notification No.29/2016-ST dated 26.05.2016 as because only Service Tax leviable under Section 66 or Section 66B of the Finance Act, 1994 had been covered under clause (a) and not Service Tax imposed under Section 119 of the Finance Act, 2015 and Service Tax imposed under Section 161 of Finance Act, 2016. 25. Notification No.12/2013-ST dated 01.07.2013 also had specifically provided refund of service tax leviable under Section 66B of the Finance Act, 1994 whereas SBC KKC have been levied under section 119 of the Act inserted vide Finance Act, 2015 and Section 161 of the Act inserted vide Finance Act, 2016, respectively, hence there was legal requirement to amend NotificationNo.12/2013-ST vide Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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