Custom, Excise & Service Tax Tribunal
M/S. Exl Services Sez Bpo Solutions P Ltd vs Commissioner Of Central Excise on 12 February, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Service Tax Appeal No. 57404 of 2013- ST(SM)
[Arising out of Order-In-Appeal No. 347/ST/APPL/NOIDA/12/1405 dated 29/10/2012 passed by Commissioner of Customs & Central Excise (Appeals), NOIDA ]
For approval and signature:
Honble Mr Ashok Jindal, Member (Judicial)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s. EXL Services SEZ BPO Solutions P Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
& ST, Noida Appearance:
Shri Nageshwar Rao and Ms.Shayree Basu Mullick, Advocates for the Appellants Shri V P Batra, AR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing /decision: 12.2.2015 FINAL ORDER NO. A/ 50401 /2015-ST(SM) Per Ashok Jindal :
The appellant is in appeal against the impugned order rejecting the refund claim filed under notification No. 9/09 on the premise that same is barred by limitation and services of CHA and scientific and engineering services were not approved services for entitlement of exemption by the appellant.
2. The facts of the case are that appellant is located in two SEZs. They sought approval and applied for the same on 10.6.2010. The approval came on 23.2.2011. They have filed the refund claim 22.2.2011 for the period from July, 2010 to September, 2010. Show cause notice was issued that the appellant has not fulfilled the conditions of notification No. 9/09. Therefore, refund claim filed by the applicant is sought to be denied. Thereafter the adjudication took place. It was held that refund claim has been filed beyond the prescribed time period in the said notification and services of CHA and scientific engineering services are not the approved services, therefore, appellant is not entitled to claim the refund claim.
3. Learned Counsel appearing on behalf of the appellant submits that the issue is covered by the decision of Tribunal in the case of Tata Consultancy Services Ltd. vs. CCE & ST, Mumbai reported as [2012-TIOL-1034-CESTAT-Mum] wherein it was held that the refund claim is maintainable under section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act. 1994 and appellant has filed the refund claim within a period of one year and under Section 11B of Central Excise Act, 1944, therefore they are entitled for refund claim. He further submits that for subsequent period, for the services of scientific and engineering, the adjudicating authority has allowed their refund claim therefore refund claim to be allowed. He further relied on the decision of Tata Consultancy Services Ltd. (supra) to say that the services provided to SEZ unit or a unit is deemed as exporter, therefore, they are entitled to refund claim on the service tax paid on services received by them.
4. On the other hand, learned AR opposed the contention of learned Counsel and submits that as per notification No. 9/09, the refund claim is to be filed within 6 months from the date of payment towards services received. Admittedly, the appellants has filed the refund claim beyond the statutory period, therefore, their refund claim is barred by limitation. He further submits that services of CHA and engineering services were not sought by the appellant for approval. Therefore, they are not entitled to the refund of service tax paid on these services. He also submits that as per notification No. 15/2009 dated 20.5.2009, the appellant is entitled to claim refund on the services specified and used in relation to various operations in SEZ goods except the services of SEZ .
5. Heard the parties. Considered the submissions.
6. In this case, there are two issues: a) whether refund claim filed by the appellant is barred by limitation; b) or/and whether the appellant is entitled for the service tax paid by the CHA and scientific engineering services. This issue came up before the Tribunal in the case of Tata Consultancy Services Ltd. (supra) wherein the Tribunal observed as under:
6. We have carefully considered the rival submissions.
6.1 As regards the refund claim of Rs. 6,66,794/- which has been rejected on the ground that the services to which this amount pertains do not have direct nexus with the authorized operations undertaken by the appellant, this stand of the department is totally incorrect. The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorized operations. The jurisdictional Commissioner of Central Excise is also a member of this Approval Committee. Once the Approval Committee has given the nexus and the justification, it was totally unwarranted on the part of the adjudicating authority and the appellate authority to go into this question and come to their own findings in the matter. Therefore, rejection by the lower authorities of the refund claims of the service tax paid on various services on this ground is bad in law and is accordingly set aside.
6.2 Coming to the next question, whether in respect of the services which were wholly consumed and which were fully exempt from payment of duty, whether the appellants can be granted refund under Notification No. 09/2009-ST dated 3.3.2009 as amended by Notification No. 15/2009-ST dated 20.5.2009 through which amendment a condition was inserted stating that the refund procedure prescribed under the said Notification shall apply only in the case of services used in relation to the authorized operations in the SEZ except for services consumed wholly within the SEZ. This view of the department is also incorrect. Notification No. 09/2009-ST exempts the taxable services specified in Clause (105) of Section 65 of the Finance Act, 1994 which are provided in relation to the authorized operations in a SEZ and received by a developer or units of a SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable thereon under Section 66 of the Finance Act, 1994. The refund procedure given below for operationalising the exemption applies to services which are procured from outside in respect of which the service tax liability has to be discharged first and the refund claim subsequently. In the case of services which are wholly consumed within the SEZ, there is no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitle for refund of the service tax paid under the provisions of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. If the appellant is eligible for refund under Section 11B, then the same cannot be denied on the ground that the claim was made under Notification No. 09/2009-ST. In this case, there is no dispute that the services were provided in relation to the authorized operations of the appellant within the SEZ. From the records it is seen that the appellant has filed the refund claim within the time period provided for in Section 11B and the appellant has borne the incidence of taxation.
6.3 Services provided to a SEZ or unit in the SEZ is deemed as export as per the provisions of Section 2 (m) (ii) of the SEZ Act, 2005 and as per Rule 31 of the SEZ Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided to a unit in the SEZ. As per Section 51 of the said SEZ Act, the said provisions prevail over the provisions contained in any other law for the time being in force. It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized broader view of the provisions relating to refund has to be taken. Therefore, even if the appellant was not eligible for refund under Notification No. 09/2009-ST dated 3.3.2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944. In this view of the matter, rejection of service tax refund is not sustainable in law.
7. Thereafter, this Tribunal allowed the refund claim holding that section 11 B of the Act, the appellant is entitled to claim the refund of services received in SEZ. I further find that for the subsequent period in appellants own case refund claim was allowed holding refund claim filed within the time and the services received in SEZ is entitled to claim refund as the service tax has been paid. In view of this observation, I hold that appellant is entitled to refund claim on both the issues relying on the decisions of this Tribunal in the case of Tata Consultancy Service Ltd. (supra). Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief.
(dictated and pronounced in the open court ) ( Ashok Jindal ) Member(Judicial) ss ??
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