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[Cites 27, Cited by 0]

Custom, Excise & Service Tax Tribunal

Hexaware Technologies Ltd vs Cst Ch - I on 26 June, 2025

    CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
                         CHENNAI

                          REGIONAL BENCH - COURT No. I


           Service Tax Appeal Nos . 41456 to 41459 of 2015
           Service Tax Appeal Nos. 41461 to 41462 of 2015
(Arising out of Orders-in-Appeal Nos. 96-101/2015 (STA-I) dated 30.03.2015 passed by
Commissioner of Service Tax (Appeals-I), Newry Towers, 2054/1, II Avenue, 12th Main Road,
Anna Nagar, Chennai - 600 040)



M/s. Hexaware Technologies Limited                                         ...Appellant
Plot No. H5, SIPCOT Information Technology Park,
Navallur Post, Siruseri,
Kanchipuram - 603 103.

                                        Versus

Commissioner of GST and Central Excise                                  ...Respondent
Chennai I Commissionerate,
Newry Towers, No. 2054/1,
II Avenue, 12th Main Road,
Anna Nagar,
Chennai - 600 040.



APPEARANCE:

For the Appellant : Shri H. Kumar, Advocate
For the Respondent : Shri M. Selvakumar, Authorised Representative




CORAM:
HON'BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL)
HON'BLE MR. AJAYAN T.V., MEMBER (JUDICIAL)


               FINAL ORDER Nos. 40672-40677 / 2025

                                              DATE OF HEARING : 23.01.2025
                                              DATE OF DECISION : 26.06.2025

     Per Mr. VASA SESHAGIRI RAO



                    M/s. Hexaware Technologies Limited, Siruseri,

     Chennai (hereinafter referred to as 'Appellant') has filed

     these 6 appeals directed against the Orders-in-Appeal Nos.

     96-101/2015         (STA-I)      dated        30.03.2015    passed      by
                                                             2
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                                                                                                    ST/41461-41462/2015




            Commissioner of Service Tax (Appeals-I), Chennai upholding

            the Orders-in-Original passed by Assistant Commissioner of

            Service Tax, Division III, Chennai partly sanctioning but

            partly rejecting the refund claims filed by the Appellant as

            per the details tabulated below: -

S.No. Appeal Nos.      Appellant      Respondent         OIO No. / date   OIA No. /     Period      Refund        Refund
                                                                          date          Involved    Claimed       Rejected
(1)         (2)            (3)              (4)               (5)             (6)          (7)           (8)           (9)
 1    ST/41456/2015                                      65/2011(R)                     Oct'09 to   66,47,964/-   52,81,564/-
                                                         dt.                            Dec'09
                                                         28.02.2011
 2    ST/41457/2015                                      87/2011(R)                     Apr'09 to   2,29,343/-    2,29,343/-
                                                         dt.                            Sep'09
                                                         31.03.2011
 3    ST/41458/2015    M/s.           The                153/2011(R)      96-           Jun'10 to   51,47,580/-   1,85,464/-
                       Hexaware       Commissioner       dt.              101/2015      Sep'10
                       Technologies   of   GST    and    04.07.2011       (STA-I) dt.
 4    ST/41459/2015    Limited        Service Tax        152/2011(R)      30.03.2015    Apr'10 to   16,54,506/-   1,45,763/-
                                                         dt.                            Jun'10
                                                         04.07.2011
 5    ST/41461/2015                                      151/2011(R)                    Jan'10 to   79,38,629/-   5,92,253/-
                                                         dt.                            Mar'10
                                                         26.06.2011
 6    ST/41462/2015                                      181/2011(R)                    Oct'10 to   68,39,525/-   2,37,848/-
                                                         dt.                            Dec'10
                                                         13.09.2011




            As the issue for determination is common in all these appeals

            i.e., rejection of part of refunds filed for the period from

            October 2009 to December 2010, these are taken up

            together for disposal by this common order.



            2.1              The relevant facts briefly stated are that the

            Appellant having registered office at Navi Mumbai have

            obtained Service Tax Registration for their SEZ Unit at

            Siruseri      mainly        under           the     category          of     'Information

            Technology Software Service'. The Appellant is also engaged

            in providing various other taxable services viz., Management
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Consulting Services, Business Support Services, Sponsorship

Services, Internet Telecommunication Services, Commercial

Training and Coaching Services, Renting of Immovable

Property Services, etc.         The Appellant has filed these 6

refunds    under      the   Notification    No.      09/2009-ST       dated

03.03.2009 as amended claiming the service tax paid in

respect of taxable services received by them for consumption

in their unit.       The Assistant Commissioner of Service Tax

while processing the above refund claims has partly rejected

the amounts as mentioned in Column No. (9) of the Table

supra     on   the    grounds   that      invoices    relating   to     Tour

Operators, Rent-a-Cab services, Business Support Services

used for conducting sports events, outdoor catering and

invoices categorized as outdoor catering but did not fall

under that service are not required to used for authorized

operations and also in respect of invoices where payment

was made more than 6 months before filing of the refund

claim.



2.2            The     Notification       No.     09/2009-ST          dated

03.03.2009 as amended by Notification No. 15/2009-ST

dated 20.05.2009 grants exemption by way of refund to

services which are received by SEZ and are used in its

authorized operations. This Notification provides exemption
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from payment of service tax for specified services which are

provided in relation to authorized operations in a SEZ by way

of refund. Following conditions are required to be satisfied to

be eligible for claiming the refund of the service tax paid on

these input services: -

  i. The SEZ unit should use these specified services in

     relation to authorized operations and

  ii. These services should be approved by the Approval

     Committee.

  iii. No CENVAT Credit of service tax paid to be taken under

     CCR, 2004.

  iv. The SEZ unit must have paid the service tax and

  v. The refund claim shall be filed within 6 months from

     the date of payment of service tax to the service

     provider.    The Notification has prescribed a detailed

     procedure for claiming the refund of service tax paid on

     approved services and used for authorized operations

     in an SEZ.

For ease of reference, the Notification No. 09/2009-ST dated

03.03.2009 referred above is extracted below: -

       "NOTIFICATION NO. 09/2009-SERVICE TAX,
                   Dated: March 3, 2009
    Superceded vide Notification no. 17/2011 ST dated
                          1.3.2011
Exemption to Services Provided in relation to authorized
operations in a Special Economic Zone (SEZ) and received
by a developer or units of a sez
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G.S.R. 146(E). - In exercise of the powers conferred by sub-
section (1) of section 93 of the Finance Act, 1994 (32 of
1994), and in supersession of the notification              of the
Government of India, Ministry of Finance ( Department of
Revenue), No. 4/2004-ServiceTax, dated the 31st March, 2004,
published in the Gazette of India, Extraordinary, Part II, Section
3, Sub-section (i) dated the 31st March, 2004, vide,
G.S.R.248(E), dated the 31st March, 2004, except as respects
things done or omitted to be done before such supersession, the
Central Government, on being satisfied that it is necessary in the
public interest so to do, 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
Special Economic Zone, and received by a developer or units of a
Special Economic Zone, whether or not the said taxable services
are provided inside the Special Economic Zone, from the whole
of the service tax leviable thereon under section 66 of the said
Finance Act:
Provided that-
       (a) the developer or units of Special Economic Zone shall
get the list of services specified in clause (105) of section 65 of
the said Finance Act as are required in relation to the authorised
operations in the Special Economic Zone, approved from the
Approval Committee (hereinafter referred to as the specified
services);
          (b) the developer or units of Special Economic Zone
claiming the exemption actually uses the specified services in
relation to the authorised operations in the Special Economic
Zone;
       1
         [(c) the exemption claimed by the developer or units of
Special Economic Zone shall be provided by way of refund of
service tax paid on the specified services used in relation to the
authorised operations in the Special Economic Zone except for
services consumed wholly within the Special Economic Zone;]
       2
         [(d) the developer or units of Special Economic Zone
claiming the exemption, by way of refund in accordance with
clause (c), has actually paid the service tax on the specified
services;]
         (e) no CENVAT credit of service tax paid on the specified
services used in relation to the authorised operations in the
Special Economic Zone has been taken under the CENVAT Credit
Rules, 2004;
        (f) exemption or refund of service tax paid on the specified
services used in relation to the authorised operations in the
Special Economic Zone shall not be claimed except under this
notification.
       3
         [(g) the developer or unit of a Special Economic Zone
shall maintain proper account of receipt and utilisation of the
taxable services for which exemption is claimed.]
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2. The exemption contained in this notification 4[except for
services consumed wholly within the Special Economic Zone,
shall be subject to the following conditions], namely:-
       (a) the person liable to pay service tax under sub-section
(1) or sub-section (2) of section 68 of the said Finance Act shall
pay service tax as applicable on the specified services provided
to the developer or units of Special Economic Zone and used in
relation to the authorised operations in the Special Economic
Zone, and such person shall not be eligible to claim exemption
for the specified services:
Provided that where the developer or units of Special Economic
Zone and the person liable to pay service tax under sub-section
(2) of section 68 for the said services are the same person, then
in such cases exemption for the specified services shall be
claimed by that person;
       (b) the developer or units of Special Economic Zone shall
claim the exemption by filing a claim for refund of service tax
paid on specified services;
       (c) the developer or units of Special Economic Zone shall
file the claim for refund to the jurisdictional Assistant
Commissioner of Central Excise or the Deputy Commissioner of
Central Excise, as the case may be;
       (d) the developer or units of Special Economic Zone who is
not registered as an assessee under the Central Excise Act, 1944
(1 of 1944) or the rules made thereunder, or the said Finance
Act or the rules made thereunder, shall, prior to filing a claim for
refund of service tax under this notification, file a declaration in
the Form annexed hereto with the respective jurisdictional
Assistant Commissioner of Central Excise or the Deputy
Commissioner of Central Excise, as the case may be;
        (e) the jurisdictional Assistant Commissioner of Central
Excise or the Deputy Commissioner of Central Excise, as the
case may be, shall, after due verification, allot a service tax code
(STC) number to the developer or units of Special Economic
Zone within seven days from the date of receipt of the said
Form;
       (f) the claim for refund shall be filed, within six months 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, from the date of actual payment of
service tax by such developer or unit to service provider;
       (g) the refund claim shall be accompanied by the following
documents, namely:-
         (i) a copy of the list of specified services required in
         relation to the authorised operations in the Special
         Economic Zone, as approved by the Approval
         Committee;
         (ii) documents for having paid service tax;
         (iii) a declaration by the Special Economic Zone
         developer or unit, claiming such exemption, to the effect
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         that such service is received by him in relation to
         authorised operation in Special Economic Zone.

         (h) the Assistant Commissioner of Central Excise or the
 Deputy Commissioner of Central Excise, as the case may be,
 shall, after satisfying himself that the said services have been
 actually used in relation to the authorised operations in the
 Special Economic Zone, refund the service tax paid on the
 specified services used in relation to the authorised operations in
 the Special Economic Zone;
         (i) where any refund of service tax paid on specified
 services is erroneously refunded for any reasons whatsoever,
 such service tax refunded shall be recoverable under the
 provisions of the said Finance Act and the rules made
 thereunder, as if it is a recovery of service tax erroneously
 refunded.

 3. The exemption contained in this notification shall apply only in
 respect of service tax paid on the specified services on or after
 the date of publication of this notification in the Official Gazette.

 4. Words and expressions used in this notification and defined in
 the Special Economic Zones Act, 2005 (28 of 2005) or the rules
 made thereunder, shall apply, so far as may be, in relation to
 refund of service tax under this notification as they apply in
 relation to a Special Economic Zone."


2.3          Thus these six refund claims have been filed by

the Appellant in terms of the above Notification which

exempts taxable services provided in relation to authorized

operations in an SEZ by way of refund to the developer or

the unit in the SEZ.     The Notification interalia provides the

developer / the units of SEZ shall get the list of services

specified in clause 105 of Section 65 of the Finance Act, 1994

as are required for authorized operations in the SEZ and use

the specified services in relation to the authorized operations

in the SEZ to be approved by the Approval Committee. The

refund is subject to the condition interalia that the claim
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should be filed within 6 months from the date of actual

payment of service tax by the unit or the developer to the

service provider. Further, the exemption is applicable only in

respect of service tax paid of the specified services on or

after    the   date   of   publication   of   Notification   which   is

03.03.2009.



3.1            The Ld. Advocate Mr. H. Kumar has appeared for

the Appellant and submitted a list of invoices along with the

date, amount of service tax paid, type of service and

whether filed within 6 months or not as extracted below. The

reasons for rejection of the amount of service tax claimed as

refund by the unit on the following grounds: -

  i. Invoices for which service tax has been paid to the

        provider before 03.03.2009.

  ii. Invoices relating to Tour Operators / Outdoor Catering.

  iii. Invoices categorized as 'Outdoor Catering', but which

        may not fall under that service and

  iv. Invoices for which payments have been made more

        than six months before filing the refund claim.
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3.2         In respect of invoices relating to tour operators,

the Ld. Advocate has submitted that for its business

purposes,   conducting   of   client   meetings   &   incurring
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expenditure on food delivered at their office have to be

treated as being used for authorized operations. In respect of

tour operator service, he submits that it is related to bus

services provided to their employees as the place where the

office of the Appellant is located is very far from the city

necessitating the Appellant arranging bus facility for smooth

commutation of employees for coming to the office and back.

As such, the services provided have to be treated as in

relation to authorized operations as these are essential for

the functioning of the unit.   He has further submitted that

tour operators' service and outdoor catering service are

covered in the list of approved services by the Development

Commissioner, SEZ. He would submit that the refund claims

were not filed under the provisions of the CENVAT Credit

Rules, 2004 but under the Notification No. 09/2009-ST dated

03.03.2009 where the only requirement is that the services

for which refund is claimed should be included in the list of

specified services approved by the Developer Commissioner

and are to be used for the authorized operations. The

Original Authority and as well as the Appellate Authority

have erred in rejecting their refunds on the ground that, the

services are not used for the authorized operations or having

not been qualified as input services under CENVAT Credit

Rules, 2004 relying on the decisions in the case of Vision Pro
                                  11
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Event Management Vs. Commissioner of Central Excise &

Service Tax, Chennai [2019 (365) ELT 555], wherein the

Tribunal, Chennai Bench held that once the input services

are   approved    by    the   Development   Commissioner,   the

Department cannot contend that the said input services are

not eligible for refund or these are not consumed within SEZ

and also in the case of Symantec Software and Services

India Pvt. Ltd. Vs. Commissioner of GST & CE, Chennai

South [Service Tax Appeal no. 40050 of 2019], wherein the

Tribunal, Chennai Bench held that once the input services

are approved by the approval committee as services for

authorized operations, the Department cannot reject the

refund claim stating that these are used only for facilitation

of employees and not for authorized operations.



3.3           He has also submitted that the other ground for

rejection of refund is that certain invoices received by the

Appellant from its vendors classifying services covered under

those invoices as outdoor catering service but actually could

not be considered as such. He has argued that it is a settled

position in law that classification of service adopted by the

vendor cannot be challenged at the Recipient's end i.e. at the

Appellant's   end.     Once the Revenue has      accepted the

classification of service as outdoor catering at the service
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provider's end, the jurisdictional officer of the Appellant who

is the recipient of the service, cannot question such

classification. For this proposition the Appellant relies upon

the following cases: -

      i. Commissioner of Central Excise & Customs vs. MDS
        Switchgear Ltd, [2008 (229) E.L.T. 485 (S.C.)],
        wherein the Hon'ble Supreme Court held that
        quantum     of   duty   already   determined   by   the
        jurisdictional officers of the supplier unit cannot be
        con tested or challenged by the officers in charge of
        the recipient unit.


      ii. Commissioner of Central Excise, Ahemdabad III vs.
        Nahar     Granites,      [2014-TIOL-582-HC-AHM-CX),
        wherein the Hon'ble Gujarat High Court held that,
        once classification has not been disputed at the
        manufacturer's end, then Cenvat credit on such duty
        cannot be declined to the purchaser of the goods
        who otherwise fulfilled all conditions for availing
        Cenvat Credit thereof.



3.4         Further, he has contended that another ground

for rejection of the refund claims is that the Appellant has

filed the refund claims after six months from the date of

payment to the vendor. In this regard, it is submitted that at

the time of filing the application itself, vide Letter dated

14.05.2010, the Appellant had provided the reason which

caused delay in filing its refund applications and sought
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condonation of such delay. The Notification grant discretion

to the Adjudicating Authority to consider the reason and

condone the delay in filing the refund application. Without

examining the reason provided by the Appellant, the refunds

are rejected, by both the Lower Authorities in a non-

speaking manner which is not permitted in law.          Without

prejudice to the above, the intention of the exemption

provided is to effectuate the larger objective of the SEZ Act,

2000, specifically, Sections 51 and 26 thereof which grants

exemption to all the services that are used by the SEZ Unit.

SEZ Act, 2000 has an over-riding effect over the other Acts

including the Finance Act, 1994. Therefore, in a situation

where the notification itself grants discretion to the officer to

condone the delay, which is procedural in nature, denial to

exercise such discretion is arbitrary and prayed to set aside.

He has further informed that in the Appellant's own case for

the period January 2010 March 2010, the refund processing

authority   vide   Order-in-Original   dated   29.06.2011     had

exercised its discretion and condoned the delay in filing of

the refund application for the said period.



4.1         The    Ld.   Authorized    Representative   Mr.    M.

Selvakumar representing the Revenue has argued that the

Appellant is not eligible for filing the refund claims of service
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tax paid on those invoices which were dated earlier to the

issuance      of    the   Notification         No.    09/2009-ST          dated

03.03.2009. He has drawn our attention to the findings of

the   Original      Adjudicating    Authority        that    tour    operator

services and outdoor catering services are not services that

can be considered as having been used in the authorized

operations of the unit but are staff welfare / entertainment

measures. He has referred to the findings of the Original

Adjudicating Authority in Orders-in-Original to press the

point that these services could not be considered to have

been used in connection with authorized operations.



4.2            He has referred to paragraph 9 of the Order-in-

Original No. 65/2011 (R) dated 28.02.2011, wherein the

Adjudicating Authority has observed that 'Tour Operator

services' and 'Outdoor Catering Services' are not services

that can be considered as having been used in the

'authorized        operations'     of        the   unit     but     are     staff

welfare/entertainment measures. To highlight that such

services cannot be considered as having been consumed for

the authorised operations, in some of the invoices issued by

Sabari Inn Private Limited and Quality Inn MGM Resorts

which have been included in the category of 'Outdoor

Catering' by the unit, that the items billed includes Wine,
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Vodka, Rum etc. Further, the charges also include Banquet

Hall charges / Restaurant charges / Music System / Room

service etc., which shows that the invoices do not relate to

'outdoor catering' but for in-house services of the hotels.



4.3          The Ld. Authorized Representative has further

pointed that an excess amount of Rs.3,06,113/- was paid

which cannot be treated as relating to taxable services.

Further, in respect of one challan dated 16.10.2009, an

amount of Rs.1,64,320/- which was paid towards the interest

and delayed payment of service tax was included for

claiming refund of service tax paid which cannot be

categorized to have been used for authorized operations. He

prayed for rejection of the appeals filed as the Lower

Authorities have examined all the documents relating to their

eligibility for service tax refund.



5.           We have heard both sides and perused the

records and also the case laws relied upon.



6.           The only issue that is required to be determined

in these appeals is whether rejection of refund claims is

justified or not?
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7.            The Appellant has filed 6 refund claims as

detailed in the above table supra for the period from October

2009 to December 2010 under the Notification No. 09/2009-

ST dated 03.03.2009 as amended. The Original Adjudicating

Authority after going through all the invoices furnished by

the Appellant have sanctioned part of the refund claims while

rejecting    other   part   for   various   reasons   which   are

categorized as given below: -

     i. Invoices for which service tax has been paid to the

       provider before 03.03.2009.

     ii. Invoices relating to Tour Operators / Outdoor Catering.

     iii. Invoices categorized as 'Outdoor Catering', but which

       may not fall under that service and

     iv. Invoices for which payments have been made more

       than six months before filing the refund claim.



8.            The details of the invoices along with date and

type of invoices and the amount of service tax involved etc.,

are given in the Annexure to the Show Cause Notice as

tabulated in paragraph 3.1 supra. To avail the benefit of

exemption of the above Notification, the Appellant is required

to pay service tax on the services utilized in connection with

the authorized operation and also the services should be
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approved by the Approval Committee for their use for

authorized operations in SEZ.



9.          The said Notification providing for a refund of

service tax paid on input services has come into effect from

03.03.2009. As such, invoices listed at Sl.Nos. 1-7 in the

above table on which the Appellant has claimed refund are

not eligible as the Appellant has included these invoices for

which payment has been made before 03.03.2009, the date

on which said Notification came into effect. The Appellant is

not eligible for exemption as can be made applicable only in

respect of service tax paid after that date i.e., 03.03.2009.

The Appellant during the submissions before the Tribunal has

categorically   indicated   that    they   have   foregone   these

amounts even before the Appellate Authority. In respect of

other invoices, the claim for service tax refund has been

rejected which are pertaining to tour operator and outdoor

catering, commercial training and information technology

services for the reason that these are not filed within 6

months from the date of payment of service tax as

prescribed under 2(f) of the aforesaid Notification. The other

grounds raised for rejecting the refund claims filed are that

in respect of outdoor catering and tour operator services

could not be treated as utilized for authorized operations.
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However, the Ld. Advocate has relied upon decisions in the

cases of Vision Pro Event Management Vs. Commissioner of

Central Excise & Service Tax, Chennai [2019 (365) ELT 555]

and also Symantec Software and Services India Pvt. Ltd. Vs.

Commissioner of GST & Central Excise, Chennai South

[Service Tax Appeal No. 40050 of 2019] wherein the Tribunal

held that once the input services are approved by the

Approval Committee as services for authorized operations,

the Department cannot reject the refund claim stating that

these are used only for facilitation of employees and not for

authorized operations. The Appellant has also submitted that

they are used for conducting the client meetings which is an

important function and definitely relating to the authorized

operations and refund cannot be rejected on this pretext and

the tour operator service is essential for carrying the

employes 'to and fro' to the unit which is required for smooth

functioning. These are genuinely required for the Appellant's

business and so denial of refund on these grounds is not

justified.



10.          The Adjudicating Authority has relied upon the

Circular No. 120/01/2010-ST dated 19.01.2010 to deny the

benefit of outdoor catering services and also tour operator

services commenting that there is no sufficient nexus
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between the services and authorized operations as detailed

in para 3.1.2 as below: -

      "3.1.2 Therefore, the phrase, "used in" mentioned in
      Notification No. 5/2006-CX (NT) to show the nexus
      also needs to be interpreted in a harmonious
      manner.        The following test can be used to see
      whether sufficient nexus exists. In case the absence
      of such input/input service adversely impacts the
      quality and efficiency of the provision of service
      exported, it should be considered as eligible input or
      input service. In the case of BPOs/call centres, the
      services directly relatable to their export business are
      renting of premises; right to use software;
      maintenance         and     repair     of      equipment;
      telecommunication facilities; etc.        Further, in the
      instant example, services like outdoor catering or
      rent-a-cab for pick-up and dropping of its employees
      to office would also be eligible for credit on account of
      the fact that these offices run on 24 x 7 basis and
      transportation and provision of food to the employees
      are necessary pre-requisites which the employer has
      to provide to its employees to ensure that output
      service is provided efficiently.         Similarly, since
      BPOs/call centres require a large manpower, service
      tax paid on manpower recruitment agency would also
      be eligible both for taking the credit and the refund
      thereof.     On the other hand, activities like event
      management,          such     as     company-sponsored
      dinners/picnics/tours, flower arrangements, mandap
      keepers, hydrant sprinkler systems (that is, services
      which can be called as recreational or used for
      beautification of premises), rest houses etc. prima
      facie would not appear to impact the efficiency in
      providing the output services, unless adequate
      justification is shown regarding their need."

A perusal of this Circular makes it all the more clear that tour

operator service, rent-a-cab service and outdoor catering

service once approved cannot be termed as not used for

authorized operations.
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11.           Thus, considering the explanation given by the

Appellant, we do not find any justification for rejecting the

service tax refund claim on tour operator services and

outdoor catering services when these services are approved

by the Approval Committee and also used for authorized

operations.



12.           In the case of Commissioner of Service Tax,

Pune Vs. Eaton Technologies Pvt. Ltd. [2017 (47) STR 355

(Tri.-Mumbai)], the Tribunal held as follows: -

      "6. It is not in doubt that the services which were
      provided to the respondent were taxable and that the
      service    tax     on    the     supplied    services   had    been
      discharged.      The      sole    issue     for   determination     is
      whether services for which tax has been collected
      along with consideration by the provider have been
      utilised in connection with the authorized operations
      for which the competent authority is the Development
      Commissioner. There is no finding that these are not
      approved services. The assessment to tax and the
      exemption provided under Notification No. 40/2012-
      S.T.      merely        lays     down       the    procedure      for
      reimbursement of a tax that should not have been
      collected in the first place. That it was collected is
      attributable to the caution exercised by the service
      provider who would rather not tangle with the possible
      intransigence on the part of service tax officers. No
      evidence has been produced to show that M/s. Mayur
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      Hotels has not rendered 'outdoor catering service' or
      provided catering service outside the zone. In these
      circumstances,     there    is    no   ground   to    warrant
      interference in the impugned order."


13.           Major and significant portion of the refund claims

filed have been rejected as the same are not filed within 6

months from the date of payment of service tax as per the

condition mentioned at 2(f) of the Notification ibid. The

condition mentioned at 2(f) of the Notification No. 09/2009-

ST dated 03.03.2009 is extracted below: -

      "2. ...

      (f) the claim for refund shall be filed, within six

      months 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, from the date of actual payment of

      service tax by such developer or unit to service

      provider;"

A perusal of the above condition indicates that when there is

a delay in filing the refund claim, the Assistant Commissioner

or the Deputy Commissioner of Central Excise have been

endowed with authority to allow extension of time for filing

the claims.
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14.           We find in these appeals, the Ld. Advocate has

advanced the reason that the delay is caused by the

Consultant in filing the claims.             In the case of Vedanta

Aluminium Limited Vs. Commissioner of Central Excise and

Service Tax, Bhubaneswar [2024 (3) TMI 1325-CESTAT

KOLKATA], the Tribunal Kolkata has held as follows: -


 "7.1. The appellant contends that the SEZ Act, being a specialized act, is
 having overriding effect over any other act. Accordingly, it is their
 contention that a notification issued under Service Tax cannot restrict or
 provide a time-limit for grant of refund of Service Tax which is not payable
 under the SEZ Act.

 7.2 We find that the contention raised by the appellant has been
 considered by the Tribunal, New Delhi in the case of M/s. SRF Ltd. (supra)
 wherein the Tribunal observed as under: -

       "37. Thus, Section 26(1) of the SEZ Act is inconsistent with the
       three charging sections viz., Section 3 of the Central Excise Act,
       1944, Section 12 of the Customs Act, 1962 and Sections 66, 66A
       and 66B of Chapter V of the Finance Act, 1994. In addition to the
       general principle of a specific law (pertaining to SEZ) prevailing
       over the general law (levying customs, central excise or service tax)
       and the later enactment (such SEZ Act, 2005) prevailing over the
       earlier enactments (Central Excise Act, 1944, Customs Act, 1962
       and Finance Act, 1994), in the SEZ Act, the Parliament has
       explicitly resolved this inconsistency between the laws. Section 51
       of the SEZ Act states that the provisions of SEZ Act override any
       other provisions of other laws. It reads as follows :

              51.(1) The provisions of this Act shall have effect
              notwithstanding anything inconsistent therewith contained in
              any other law for the time being in force or in any instrument
              having effect by virtue of any law other than this Act.

       38. Thus, insofar as supplies for authorised operations of SEZ
       developers and units are concerned, Section 26 of the SEZ Act
       overrides the charging sections in all the three Acts.

       39. The charging sections, having been overridden by the SEZ Act
       passed by the Parliament, no legal authority to levy and collect
       central excise duty, customs duty or service tax for goods or
                                        23
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      services supplied for authorised operations of SEZ developers and
      units covered by Section 26 remains. Without such a legal
      authority, no tax or duty can be either levied or collected in view of
      Article 265 of the Constitution of India.

      40. Therefore, there is no need for any exemption notifications
      under any of these three Acts nor is it necessary to fulfil any
      conditions of any of the conditions laid down in exemption
      notifications, if any, issued for the purpose. Thus, the charge of
      excise duty under Section 3 of the Central Excise Act, the charge of
      Customs Duty under Section 12 of the Customs Act and the charge
      of service tax under Sections 66, 66A and 66B of the Finance Act,
      1994 will not apply to goods and services supplied to developers
      and units for authorized operations in the SEZ areas by virtue of the
      overriding provisions of the SEZ Act. Any exemption notifications
      and conditions therein are therefore, redundant because, the
      Parliament itself has, through Section 51 of the SEZ Act, overridden
      the charge in the other laws.

      .

.

.

48. Thus, as the charge of service tax under the Finance Act, 1994 on the services provided for authorised operations of the appellant are overridden by section 51 of the SEZ Act, 2005, any exemption notifications for such services as well as the conditions laid down in them are redundant. Service tax, if any, paid on such input services for authorised operations need to be refunded to the appellant. We also find no force in the other grounds raised for denying the refund of service tax paid and discussed above.

49. The denial of refund of service tax to the appellant in these five appeals is not sustainable and, accordingly, we find that appeals need to be allowed and the impugned orders need to be set aside." 7.3 This view was also taken in the case of DLF Assets Pvt. Ltd. (supra) wherein it has been held as under: -

"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 Rule 31 of the SEZ Rules thus, have overriding effect over anything inconsistent contained in any other law for the time being in force, which would include the Finance Act. It needs to be noted that the Notification 24 ST/41456-41459/2015 ST/41461-41462/2015 dated March 3, 2009 has been issued in exercise of the powers conferred by Section 93 of the Finance Act. Thus, when the services rendered by the appellant are fully exempted from service tax in terms of the provisions of the SEZ Act, the condition of exemption by way of refund imposed under the Notification issued under the Finance Act would be inconsistent with the provisions of the SEZ Act. It also needs to be noted that the SEZ Act was enacted in 2005, much after the enactment of the Finance Act in 1994.
.
.
.
21. Thus, what follows is that the Commissioner was not justified in examining whether the conditions set out in the Notification dated March 3, 2009 were satisfied or not for grant of any exemption from service tax. Section 26(2) of the SEZ Act does provide that the Central Government may prescribe the manner in which, and the terms and conditions subject to which, the exemptions shall be granted to the Developer under sub-section (1) but what is important to notice, and as was also observed by the Andhra Pradesh High Court, the word "prescribe" would mean "prescribed by rules made by the Central Government under the SEZ Act," in view of the definition of "prescribed" under section 2(w) of the SEZ Act. The Notification dated March 3, 2009, which has been issued under Section 93 of the Finance Act, therefore, has no application."

7.4 In the view of Section 26(1) of the SEZ Act read with Rule 31 of the SEZ Rules, we observe that the conditions of Notification No. 09/2009- S.T. are clearly repugnant and inapplicable. This is because Section 51 of the SEZ Act grants overriding power to the provisions of the SEZ Act. We find that the Tribunal, New Delhi in the case of M/s Lupin Ltd. (supra) has held this view and the observations of the Tribunal are reproduced as under: -

"21. From the aforesaid, it is evident that the appellant fulfilled the criterias of eligibility to claim refund of the service tax paid on input services in terms of the Notification No 12/2013-ST. Infact it is not the case of the revenue that the appellant is not eligible to make such claims. Their only objection is to the claim being filed beyond the period of one year as per the notification. We are of the considered opinion that once the appellant is found to be eligible to claim the refund, the substantive conditions are complied with and the condition of time limit for making the claim under the notification being only a procedural requirement, needs to be construed liberally. Considering the beneficial object of establishing the SEZ tax free, without any burden of duties, the procedural lapse, if any, 25 ST/41456-41459/2015 ST/41461-41462/2015 cannot be the basis to deny the refund to the appellant. The exemption is intended to be absolute is further evident from para 3 (11) of the Notification which provides for ab-initio exemption. This strengthens our conclusion that the SEZ Act and the Rules read with the notification is intended to be a beneficial policy for the SEZ, therefore has to be construed liberally. In our view we are supported by the decision of the Apex Court in Government of Kerala &Anr. Vs. Mother Superior Adoration Convent (supra), where it has been held that the beneficial purpose of the exemption must be given full effect to and before interpreting a statute, "we must first ask ourselves what is the object sought to be achieved by the provision and construe the statute in accordance with such object". The Court went ahead to hold that in the event of any ambiguity in such construction, such ambiguity must be in favour of that which is exempted. On the principle that there is a clear distinction between exemptions which are to be strictly interpreted as opposed to beneficial exemptions having the purpose of encouragement or promotion of certain activities, the Court relied on several decisions. ....

8. The appellant also contended that in terms of Notification No. 09/2009- S.T. exemption is granted by way of refund of Service Tax in situations where services are not wholly consumed in the SEZ. Whereas for the services which are wholly consumed in SEZ, the appellant need not pay service tax at all because the assessee is eligible for outright unconditional exemption for the services wholly consumed in the SEZ. This change was brought about by Notification No. 15/2009-S.T. dated 20.05.2009. 8.1 We agree with the above contention of the appellant. If Service Tax is paid with respect of services which are wholly consumed within the SEZ, it would be the case of Service Tax wrongly paid, as no service tax is otherwise payable. In that case the refund claim of the assessee would not be covered by Notification No. 09/2009-S.T., but rather it would be covered under Section 83 of the Finance Act read with Section 11B of the Central Excise Act, 1944. In such a case the time period for filing the refund claim is one year and the appellant has filed the refund claim within this period of one year. Accordingly, the refund claim can be considered to be filed within the prescribed time-limit. We find that a similar view has been taken by the Tribunal in the case of M/s. Tata Consultancy Services Ltd. (supra)."

26

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15. Further, in the case of Congnizant Technology Solutions India Pvt. Ltd. Vs. Commissioner of Central Excise & Service Tax, Chennai [2021 (10) TMI 642-CESTAT CHENNAI], the Tribunal held as follows: -

"It is not disputed that all claims had been filed on or before the last date for filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents - It can be seen from the 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.
In the 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 COMMISSIONER OF SERVICE TAX CHENNAI SOUTH COMMISSIONERATE [2021 (8) TMI 450 - CESTAT CHENNAI] has applied the above decision of the Hon'ble High Court of Telangana and Andhra Pradesh and held that Section 51 of the SEZ Act, 2005 has an 27 ST/41456-41459/2015 ST/41461-41462/2015 overriding effect. The denial of the benefit of exemption by relying upon procedural requirement of a Notification would be against the provisions laid down in the SEZ Act.
The terms and conditions of the Notifications (04/2004-ST, 09/2009-ST and 17/2011-ST, as applicable for different periods) cannot be pressed into application to deny the substantive benefit of exemption enshrined in Section 26 of the SEZ Act, 2005 - the rejection of refund claims on the ground of being time-barred cannot sustain and requires to be set aside."

16. In view of the above discussion and appreciating the facts and applying the ratio of the above decisions relied upon, we are of the view that once the services are approved by the Approval Committee and are utilized in relation to the authorized operations in SEZ, rejecting a part of the claims is not in order as above. However, the Refund Sanctioning Authority has to satisfy himself that these input services are approved by the Approval Committee, due service tax has been paid, no CENVAT credit on these services availed and are used for authorized operations.

17. In summary, the Appellant has foregone the service tax amount involved on those invoices which are paid before the Notification No. 09/2009-ST dated 03.03.2009 came into effect. Further, the Appellant has wrongly produced invoices which are totally unrelated to authorized operations like invoices pertaining to interest paid, 28 ST/41456-41459/2015 ST/41461-41462/2015 conducting sports event and expenditure relating to services availed as detailed in Paragraph No. 4.3 above. We hold that these services cannot be treated as related to authorized operations and approve the Original Authority's denial of service tax paid in respect of these invoices. In terms of the decision of Hon'ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs. Dilip Kumar & Company [2018 (361) ELT 577 (SC)], the onus is on the Appellant to prove that he has satisfied the conditions of the Notification No. 09/2009-ST dated 03.03.2009 which provides for refund of service tax paid to SEZ units.

18. In the result, the impugned Orders-in-Appeal Nos. 96-101/2015 (STA-I) dated 30.03.2015 passed by Commissioner of Service Tax (Appeals-I) is set aside on the above terms.

19. The appeals filed are allowed but for the above modification with consequential relief, if any, as per the law.

(Order pronounced in open court on 26.06.2025) Sd/- Sd/-

 (AJAYAN T.V.)                                             (VASA SESHAGIRI RAO)
MEMBER (JUDICIAL)                                            MEMBER (TECHNICAL)
MK