Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Pune-I vs M/S. Barclays Technology Centre (I) ... on 12 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. ST/538/2011-Mum. In ST/CO-162/2011-Mum. (Arising out of Order-in-Appeal No. PI/RKS-100/2011 dt.6.7.2011 passed by the Commissioner of Central Excise, Pune-I ) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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Commissioner of Central Excise, Pune-I
:
Appellant
VS
M/s. Barclays Technology Centre (I) Pvt. Ltd.
:
Respondent
Appearance
Shri B. Kumar Iyer, Superintendent (A.R.) for Appellant
Shri Mihir Mehta, Advocate for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Date of hearing : 12/09/2014
Date of decision : 12/09/2014
ORDER NO.
Revenue is in appeal against the impugned order wherein the Commissioner (Appeals) sanctioned the refund claims to the respondents on account of the service tax paid on the services which have been consumed only in SEZ is entitled for refund claim. The respondents also filed Cross-objection to the appeal of the Revenue.
2. The sole contention of the revenue is that vide notification No. 15/2009-ST dt. 20.5.2009 if services provided are consumed wholly within the SEZ would be exempted from payment of service tax. Therefore, it follows that if service tax is charged by the service provider and paid by the unit in the SEZ the same cannot be claimed by way of refund w.e.f. 20.5.2009.
3. Heard the Ld. A.R. and examined the issue between the records.
4. After going through the contention of the Ld. A.R., I find that the intention of the Revenue is that if anybody has paid the service tax and same has consumed by SEZ, he is not entitled for the refund claim. If it is so, a person who has paid service tax is not entitled to pay the service tax shall not be entitled to take the refund of the same which is not for the intention of the legislation. It is only the intention of the Revenue officer. Similar, issue came up before this Tribunal in the case of Tata Consultancy Services Ltd. Vs. Commr. Of Ex. & S.T. (LTU), Mumbai reported in 2013 (29) STR 393 (Tri.) wherein this Tribunal has observed as under:
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. 9/2009-S.T., dated 3-3-2009 as amended by Notification No. 15/2009-S.T., 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. 9/2009-S.T., exempts the taxable services specified in Clause (105) of Section 65 of the Finance Act, 1994 which are provided in relation to the authorised 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 entitled 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. 9/2009-S.T. 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.
Therefore, I hold that Ld. Commissioner (Appeals) has passed the correct order and sanctioned the refund claim which was entitled to the respondents.
5. In these terms, I uphold the impugned order and dismissed the appeal filed by the Revenue. Cross-objection is also disposed of in the above terms.
(Dictated in court) (Ashok Jindal) Member (Judicial) Sm ??
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