TMI Blog2024 (4) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... actor makes no difference since the service has been rendered to SEZ Unit, the benefit of exemption notification is available to the appellant. Reliance placed in Tribunal s decision in the case of SHYAM ENGINEERS VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VADODARA [ 2023 (10) TMI 1379 - CESTAT AHMEDABAD] where it was held that there is no doubt in our mind that service provided by the appellant in the capacity of sub-contractor but in relation to the authorised operations in SEZ are clearly eligible for exemption Notification No. 9/2009-ST dated 03.03.2009 as amended. The substantial benefits of exemption notification cannot be denied merely on small infringement of procedural requirement - the impugned order set aside - appeal allowed. - HON BLE MR. SOMESH ARORA, MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR, MEMBER ( TECHNICAL ) Shri Saurabh Dixit, Advocate for the Appellant Shri SS Vikal, Assistant Commissioner AR for the Respondent ORDER C. L. MAHAR : The facts in brief are that the appellant is engaged in providing Erection, Commissioning and Installation Service and other construction activities and for the same they are registered with service tax authorities. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand which pertains to period prior to March 2011 is otherwise not sustainable because there was no such requirement of making any declaration in Form A-1 by the appellant prior to that. It has further been submitted by the learned advocate that a substantive benefit provided by a notification or by an Act cannot be denied merely for some infringement of procedural requirement. The learned advocate emphasized that Section 26 of SEZ Act provides that all activities and services rendered in SEZ area for SEZ developer or SEZ unit are exempted from service tax. The learned advocate relied upon various case laws in support of his arguments:- (a) Shyam Engineers Final Order No.12201/2023 dated. 07.08.2023 (b) Rishabh Construction Company 2023 (10) TMI 596-CESTAT Ahm (c) Fedco Paints and Contracts 2017(3) GSTL 364-(Tri- Mum) (d) Anjani Excavation Operation 2023(7) TMI 205-CESTAT Ahm (e) Sanghvi Movers Ltd 2018(10) TMI 90- CESTAT Mum (f) Neo Structo Construction 2023(2) TMI 289-CESTAT Ahm 2.2 It has further been stressed by the learned advocate that this Tribunal in the case of Reliance Ports and Terminals Limited reported in 2015 (40) STR 200 (Tri. Ahmd.) as well as in the case of DHL L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994 to grant immunity to the sub contractor from levy of service tax when undisputedly taxable services were provided by them. No evidence was before us to notice whether the service provided by the sub- contractor to the contractor was ever been taxed. We noticed that para 9 of the Larger Bench decision in the case of M/s. Vijay Sharma Co. cited by the learned AR clearly speaks that a sub-contractor shall not be immune from service tax under Finance Act, 1994. The said para 9 is reproduced below for appreciation. In view of the foregoing discussion, it is clear that even when service is provided in the category of sub-contractor, he is liable to pay service tax. This view is also supported by Board's circular No. 96/7/2007-ST dated 23.08.2007 and 138/7/2011-ST dated 06.05.2011 as elucidated above. Under the circumstances I find M/s Randhawa not eligible for the exemption on the taxable services provided by them as sub-contractor to M/s Samsung. It can be seen that there is no denying of the fact that services were provided by the appellant in the capacity of a subcontractor to a unit located in SEZ area and only argument on the basis of which the learned Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt in our mind that service provided by the appellant in the capacity of sub-contractor but in relation to the authorised operations in SEZ are clearly eligible for exemption Notification No. 9/2009-ST dated 03.03.2009 as amended. Accordingly, the impugned order is set-aside, appeal is allowed. A similar view has also been taken by this Tribunal in the case of Rishabh Construction Company 2023 (10) TMI 596-CESTAT Ahmd, the same is reproduced below:- 4. We have carefully considered the submission made by both sides and perused the records. We find that the Revenue has denied the exemption to the appellant on the ground that the appellant being sub- contractor provided the service not to the SEZ but to the main contractor i.e. M/s. Khurana Construction, therefore, they are liable to pay the service tax. We find that even though the service was provided by the appellant on the behest of the main contractor M/s. Khurana Construction but there is no dispute that the service was provided in relation to various operations of the SEZ and the services was undisputedly consumed in the SEZ therefore, the appellant has provided the service in SEZ. Accordingly, they are eligible for exemption N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner or Board of Approvals, as the case may be, to establish the unit in the Special Economic Zone; (iii) the developer or unit of a Special Economic Zone shall maintain proper account of receipt and utilisation of the said taxable services. Explanation. - For the purposes of this notification, - (1) Board of Approvals means the combined Board of Approvals for export oriented unit and Special Economic Zone units, as notified in the Official Gazette, from time to time by the Government of India in the Ministry of Commerce and Industry; (2) developer means a person engaged in development or operation or maintenance of Special Economic Zone, and also includes any person authorised for such purpose by any such developer; (3) Special Economic Zone means a zone specified as Special Economic Zone by the Central Government in the notification issued under clause (iii) of Explanation 2 to the proviso to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). 6. It can be seen from the above reproduced notification that the said notification exempts any taxable service provided by any service provider for consumption of the service within a Special Economic Zone, subject ..... 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